Criminal responsibility and social constraint

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CRIMINAL RESPONSIBILITY

AND

SOCIAL CONSTRAINT

CRIMINAL RESPONSIBILITY

AND

SOCIAL CONSTRAINT

BY

RAY MADDING McCONNELL, Ph.D.

INBTBUCTOR IN SOCIAL ETHICS, HARVARD UNIVERSITY,
AUTHOB OF "THE DUTY OF ALTRUISM"

NEW YORK

CHARLES SCRIBNER'S SONS

1912

Copyright, 1912, by
CHARLES SCRIBNER'S SONS

Published March, 1912

Libra/

wv
rinse

CONTENTS

PART I.— THE AIM OF PUNISHMENT

Introduction

I. Punishment for Expiation
II. Punishment for Retribution

III. Punishment for Deterrence

IV. Punishment for Reformation
V. Punishment for Social Utility

PAGE
1

6

22

60

86

113

PART II.— FREEDOM IN CRIME

VI. Statement of Opposed Views .... 127

VII. The Psychology of Will, Motive, and

Choice 135

VIII. The Nature of Mental Causation . . 152

IX. Conception of Freedom Synonymous with

Ignorance of Causes 177

X. Determinism Assumed in Daily Life and

in Scientific Procedure 183

XI. Concerning the "Testimony of Self-
Consciousness" 191

v

fiO.?P5*i

yi CONTENTS

CHAPTER PAGE

XII. Freedom as Absence of External Con-
straint 202

XIII. Character and Environment .... 210

XIV. Determinism Not Essentially Material-

istic or Fatalistic 219

XV. Reward and Punishment 228

XVI. The Nature of Laws 239

XVII. Transcendental Freedom 258

PART III.— RESPONSIBILITY FOR CRIME

XVIII. Early Extremes and Present Practices 261

XIX. Arguments for Complete Irresponsibil-
ity of All Criminals 271

XX. Contrast of Moral Considerations and

Social Expediency 290

XXI. Assertion of the Criminal's Social Re-
sponsibility 296

XXII. The Basis of Personal Accountability 310

XXIII. The Basis of Social Constraint . . . 322

XXIV. Practical Procedures. Conclusion . . 333

CRIMINAL RESPONSIBILITY

AND

SOCIAL CONSTRAINT

PART I

THE AIM OF PUNISHMENT

INTRODUCTION

Among the most expensive functions of govern-
ment is that which is concerned with the detection,
arrest, trial, and punishment of criminals. The ex-
penditures in connection with police, courts, and
prisons exceed in amount the outlay for the con-
servation and improvement of health, the necessities
and conveniences of travel and intercourse, high-
ways, parks, and playgrounds, and about equal the
costs of education.1

When any one begins to philosophize about the
raison d'etre of this enormously expensive arrange-
ment for dealing with crime and criminals, he natu-
rally asks first for its purpose — What is the object
of it all? What kind of return does this investment
bring in? Society has schools for the ignorant.
It has accident stations, ambulance corps, dispen-
saries, and hospitals for the injured and diseased.
It has special educational institutions for the feeble-
minded, the blind, the deaf, and the dumb. It has
homes for the aged, the infirm, and the incapacitated.

1 Cf. Spalding, "The Money Cost of Crime," in Journal of the
American Institute of Criminal Law and Criminology, May, 1910,
pp. 86-102; and Eugene Smith, "The Cost of Crime," in Proceed-
ings of the Annual Congress of the National Prison Association, 1900,
pp. 308 ff.

1

2 CRIMINAL RESPONSIBILITY

It has asylums and hospitals for the epileptic and
the insane. But for the criminals, society has de-
tectives, bureaus of criminal identification, police,
judges, jailers, and executioners — houses of correc-
tion, penal colonies, jails, penitentiaries, the gallows,
and the electric chair. What is the ground for the
difference in treatment that is accorded to this last
class?

Society has been treating criminals in very definite
ways for quite a long time, and has been to almost
infinite pains and expense to treat them precisely
so. Hence it is perfectly reasonable to suppose
that society must have some very specific reason
for such methods. Perhaps the reason is so clear
that any and every man could state it in few words.
Let us make the experiment, and ask of a few men
what object society has in view in its dealings with
the criminal.

The lawyer replies that punishment is to com-
pensate for damage, and to prevent further damage.
The sociologist says that it is to restore the social
equilibrium that has been disturbed, and to prevent
further disturbance. The psychologist maintains
that it is to work on the memory and imagination
both of the person punished and of others who may
learn of it, so that the crime may not be repeated.
The moralist holds that it is to make the culprit see
the error of his way, and to awaken his feelings of
remorse and penitence, so that he may be converted
into a good man. The priest declares that it is to
expiate for sin, to make atonement to the moral
governor of the universe through the sufferings
of the guilty sinner. The physician says that it

AND SOCIAL CONSTRAINT 3

is to eradicate a plague-spot in the mind of the
criminal, to prevent further spreading of the plague
and the risk of social infection. The eugenist be-
lieves it a means of purifying the human race and of
creating and maintaining the best social type, by
rooting out the elements that have degenerated.
The policeman affirms that it is to instil in the minds
of the person punished and others who see his ex-
ample a proper fear of those persons who make and
enforce the laws. The soldier regards it as a public
rejoicing over an enemy of the general interest,
peace, and authority, who is at last overcome and
mocked. The criminal himself considers it a fee
stipulated by the power which protects the evil-doer
against excess of revenge from the person injured —
a compromise which society accomplishes between
the right of the person injured to take revenge and
the right of the wrongdoer for social protection.
The injured person looks on it as a payment by the
injurer to the injured in some form or other, most
frequently in the form of gratified feeling at seeing
the damage-doer suffer in his turn.

These examples are enough to show how diverse
are the opinions and how vague is the general idea
concerning the specific object of punishment. There
seems no general agreement as to whether punish-
ment is retrospective or prospective — whether it is
intended to requite the past or to* mould the future.

If it be thought that the vagueness and diversity
in these answers are due to the fact that we did not
consult especially the experts whose chief concern
is with punishment, a little investigation will show
that this is not the case. Our legal statutes are

4 CRIMINAL RESPONSIBILITY

indeed far removed from casual human sentiment.
They are elevated above the whims, prejudices, and
crude opinions of individuals. The law is supposed
to have a definite purpose back of its prescriptions.
But the learned doctors of the law really differ
among themselves on this point as radically and
fundamentally as do any other persons. A careful
observer is soon forced to realize that the theories
of criminal punishment current among our judges
and legislators have assumed neither a coherent nor
a stable form, and that the corresponding practical
applications of punishment must be regarded as
experimental and transitional.

This diversity and vagueness are to be accounted
for by the fact that punishment is not a specially
manufactured instrument, designed for a certain
purpose, but is a complex social growth, having
persisted through the changes of ages, places, and
races. For thousands of years it has been develop-
ing, gathering accretions in some parts, undergoing
dissolution in other parts, and all the while becom-
ing more and more heterogeneous though more and
more closely integrated.

Nevertheless, like all other social phenomena, it
is subject to approach by science and philosophy.
Science may investigate its origin and development,
its place and functions in social life. Philosophy
may consider its rationality, its right to continue in
existence and to be consciously employed by society
to accomplish its deliberate intentions. Now that
human societies have become self-conscious and self-
governing, their actions are in part at least subject
to the control and direction of ideas. If a society

AND SOCIAL CONSTRAINT 5

conceives the notion that social punishment should
never be designed to accomplish a certain purpose
— to expiate religious sin, for example — then the
cessation of punishment for that reason is sure to
result as fast as the inertia of long-fixed social
habits may be overcome.

All the variations in the object of punishment
may be reduced to four fundamental types — ex-
piation, retribution, deterrence, and reformation.
The first part of this book will be devoted to a
scientific weighing of the social merits and demerits
of these ideas. Any prejudices derived from relig-
ious or moral partisanship should be absolutely dis-%
carded. The investigation should be directed by a
wholly scientific mind and by purely social consid-
erations.

CHAPTER I
PUNISHMENT FOR EXPIATION v,u"
1. Statement of Theory

We are now to undertake a search for a satis-
factory purpose in punishment. It would be well
to have in mind from the start a precise understand-
ing of what punishment is. It is definite suffering
inflicted by, or in the name of, society upon an of-
fending member. The intentional infliction of pain
is an essential element. Treatment of the criminal
by means of hypnotism, drugs, baths, and massage
could not be called punishment.

The first view which we are to consider is that
which regards the object of punitive treatment as
the expiation of moral wrong or religious sin. This
view may be summarized in a few paragraphs.

The moral order has been injured by the crime,
and suffering on the part of the wrongdoer is the
means of expiating the fault. The violated sanctity
of the moral law can be repaired only through chas-
tisement of the violator. The "ethical balance"
or "moral equilibrium" of the universe has been
disturbed by the act of the criminal, and can be
restored only through his suffering. "Punishment
is, in its essence, a rectification of the moral order
of which crime is the notorious breach."1 Or, in

1 Seth, "Ethical Principles," p. 317.
6

CRIMINAL RESPONSIBILITY 7

Hegel's words, "Wrong negatives right, but wrong
negatives the negation." ■ Just human punishment
avenges wrongs against the moral law, not from
feelings of human vindictiveness, but as represent-
ing that which is the foundation of the universe.
The moral law which the criminal has outraged as-
serts itself against him, to make him realize that he
has done wrong, and to expiate his offence.

The general feeling of right and justice has been
disturbed by the wrong, and can be set at rest only
by the knowledge that the merited punishment has
been received. Everywhere must exist an active
consciousness and realization that guilt is an evil
which reacts upon the guilty. Suffering expiates*
guilt — that is, it satisfies the general moral con-
sciousness of mankind. The sinful individual will
has offended against the righteous universal will;
it is necessary, in the very nature of the moral uni-
verse, that expiation be made and bear a quantita-
tive correspondence with the guilt — the greater the
guilt, the greater the suffering.

That punishment must be, above all else, an expi-
ation for past fault is proved by society's minute
precautions to apportion the penalty as exactly as
possible to the gravity of the crime. This endeavor
is explicable only on the principle that the culpable
ought to suffer because of, and in proportion to, his
wrong. Considered in itself, that is, entirely apart
from social interests and usefulness, punishment of
wrong is just. Its justice consists in the fact that
there is in the very nature of the moral universe
a necessary relation between guilt and pain. The

1 Hegel, "Naturrecht," §§ 90 ff.

8 CRIMINAL RESPONSIBILITY

guiding principle is that offences should be punished
according to the badness of character they imply.
This is the explanation why the poisoner is dealt
with more severely than the adulterator — the harm-
ful social effects of the adulteration may be more
widespread and detrimental, but the character of
the poisoner is the more heinous. The builder of
unsafe bridges and the insurer of dangerous houses
may cause greater social damage than the assassin,
but they are adjudged morally superior to him
and are subjected to milder penalty. The ravisher
shows greater moral depravity than the professional
enticer of maidens, although the amount of social
injury may be less, hence his treatment is the more
stern. The death penalty cannot be explained on
the basis of being intended for the criminal's refor-
mation— it is a testimony in favor of the view
that punishment is to give the offender what he
deserves for having violated the sanctity and majesty
of the law. What is achieved may be simply and
solely the actual suffering. This shows that it was
a medium to expiate guilt. "By his suffering he
expiates his wrong, and appeases the rightful indig-
nation of the law which he has transgressed." 1

Crime is primarily and essentially an offence
against God, who demands the chastisement of the
offender as the appropriate expiation. The funda-
mental aim of punitive dealing is moral atonement.
The criminal is made to undergo suffering out of the
recognition of the obligation to expiatory sacrifice
to the injured sanctity of the divine law. The func-
tion of the worldly authorities, deriving their sanc-

1 Alexander, "Moral Order and Progress," p. 332.

AND SOCIAL CONSTRAINT 9

tion and their power from on high, is to adjust suffer-
ing to sin. The criminal is, from the religious point
of view, a being impure, unclean, wicked, sinful, a
moral leper. The punishment imposed upon him is
to be regarded in the character of a penance imposed
by a priest of God, in order to make expiation and
atonement. It is absolutely necessary and reason-
able. To deal with a physical leper in the same way
as with a healthy person would be absurd; simi-
larly, it would be unreasonable to treat a sacrileg-
ious and morally tainted person like one whose
heart and hands are pure.

God, in his absolute justice, cannot allow one
guilty sinner to escape; else his authority would
crumble; his subjects would see that his rule was
based on favoritism and partiality; and revolt
would shake to its foundations the firmament of
heaven and earth. If the moral governor of the
universe should permit one wrong act to go un-
punished and unexpiated, then the whole moral
universe would tumble to pieces, and the world
would become the abode of demons. The divine law
and authority can be upheld only through punish-
ing the guilty.

Human law is, or should be, but a replica of the
divine law. Hence human punishments can have
no higher or different aim than that of upholding
the sanctity of the divine law, and of seeing to it
that when this has been violated by crime and sin
the violation shall be expiated by the suffering of
the guilty.

10 CRIMINAL RESPONSIBILITY

2. Objections to Theory

To administer punishment for the object of ex-
piating moral or religious guilt is an impossible task.
The principle that the penalty inflicted on the crim-
inal must be made proportional to the wickedness
of his character cannot be accomplished by human
administrators of justice. They would have to
penetrate into the will and measure its badness in
order to know how much pain to inflict as an offset.
But the thoughts of man are not open to other men.
What judge is able to inspect the heart and to esti-
mate the amount of moral depravity there, and is
entitled to speak in the name of God and say that
a certain amount of suffering is due as expiation?
He would have to be able to foreknow the inward
feelings of each individual prisoner throughout the
whole period of his imprisonment, and to determine
in advance what length of time in prison would be
exactly a sufficiency of pain to satisfy, for atone-
ment, the offence which had been experienced by
God. Civil punishments cannot be meted out as
God's justice. Legal penalties must be concerned
only with the social significance of acts, motives,
and dispositions. They must have no concern
with the intrinsic or extrasocial qualities, such as
the moral and religious character of the heart.
The state must not punish the criminal for immoral
or irreligious deeds, as such, but for anti-social
deeds. Legislators and judges must not regard
themselves as adjusters of the derangements in
the moral order, but as guardians of the social
well-being. Punishment must be considered as ad-

AND SOCIAL CONSTRAINT 11

ministered, not to "a moral and religious repro-
bate," but to a social damage-doer — an incendi-
ary, a forger, a burglar, an assassin.

This theory maintains that the crime which im-
plies the greatest moral depravity should be visited
with the punishment that involves most pain to the
sufferer. But no tribunal is capable of making the
pain of punishment proportionate in each case to
the depravity of the crime. In the first place, the
degree of moral turpitude in an act is unascertain-
able. It depends on motives and on the general
character of the agent. No one can calculate ex-
actly the moral quality of his own acts. Much less
can a judge or jury measure the moral value of an
act of an unknown criminal. In the second place,
no punishing authority can regulate the amount of
pain caused to the culprit. The degree of suffer-
ing experienced in a particular case depends upon
the temperament and circumstances of the person,
which cannot be ascertained. Still further, this
theory entertains a false view of the relation of the
state to morality, implying that it is the business of
the state to punish wickedness, as such. But the
state has no such business. It has no concern with
the moral depravity of the criminal. It can pun-
ish only in its capacity as the sustainer of social
rights. Punishment is founded essentially on the
relation of a man's conduct to the security and free-
dom of other members of society. Its kind and
amount are determined by considerations which are
prospective rather than retrospective. It cannot
undo the harm that has been done, but it can make
less likely a repetition of the injury. Its object,

12 CRIMINAL RESPONSIBILITY

therefore, is to make the criminal suffer, not for the
sake of the suffering, but in order to associate such
terror with the contemplation of the crime, either
by himself or others, that the terror will restrain
from the crime. There is no reference to moral good
or evil. The state in its punitive dealings with
criminals looks not to individual virtue and vice
but to social rights and wrongs. It aims to pro-
tect society. This object is in the main attainable;
but the object of making the pain of punishment
commensurate with the guilt of the criminal is not
attainable.1

In man there is a tenacious sentiment, making
it psychologically impossible for him to rest con-
tent with virtue unrewarded and vice unpunished.
Man is moral by nature; he will not believe that the
last word is to be with the bad, and that evil and
injustice are to triumph over good. But we need
to realize that this sentiment has a purely social and
earthly origin, development, and utility. Man's nat-
ure is such as has been furnished him by heredity
and environment, evolution and natural necessity.
His system of punishment has been developed under
the necessities of social life and intercourse. It
should be recognized for what it is, a purely human
institution and instrument. It should not be re-
garded as of use in the service and worship of the
gods. ■

Punishment for expiation alone is without any
social utility, and, being administered out of re-
gard for the past, is futile. It cannot make the

1 Cf. T. H. Green, "Principles of Political Obligation," "Works,"
VOL II, paragraphs 192, 193, 196, 197, 204.

AND SOCIAL CONSTRAINT 13

past any different,' or cause that what has happened
shall not have happened. Just punishment must
be administered out of regard for the future.

Evil cannot be expiated with evil. We cannot
neutralize one ill by the addition of another. For
people to be morally bad is enough of evil without
the addition of physical pain. Inflicting suffering
for the suffering's sake is a mere triumphing over
wrong by wrong, though in the name of good. Any
pain inflicted by society which is not an act of good-
will and intended to do good is blameworthy. At
the basis of the view which regards the object of
penalty as expiation there lies a demand for the
suffering of the victim — not for the sake of the feel-
ings of the avenger, not for the sake of protecting
society from harm, not for the sake of bettering the
sufferer, but solely in order that suffering may
exist for its own sake. The single point of view is
that he who does wrong deserves to suffer for it. The
whole collection of these old views should be thrown
away together — free wickedness, the social demerit
of personal badness, and punishment as expiation.

Kant's doctrine that punishment is "the logically
necessary consequence of wrong," and "is demanded
by the categorical imperative," is empty formalism,
and must be rejected by all who maintain that a law
is valid, not because it is a "formal" imperative,
but because it has a "content" of empirical good.
Similarly, no real meaning can be given to Hegel's
dictum that "wrong negatives right, but punishment
negatives the negation." How can punishment af-
fect the past and make naught what has been? If
his dictum does not mean this, does it mean simply

14 CRIMINAL RESPONSIBILITY

that "even if wrong did happen, it ought not to have
happened"? Is society arresting, fining, imprison-
ing, hanging, and electrocuting criminals simply in
order to illustrate such a tautologous statement?
Carried out to its logical conclusion, this view main-
tains that punishment would be just even though
it had absolutely no social effect, and could have
none, in the very nature of things. But let us exer-
cise a little common-sense and realize that thieves
would not be lodged in jails and penitentiaries if
that did not prevent them from stealing and deter
others from theft. Society would not go through
the enormous expense of building and maintaining
prisons if the existence of such institutions had no
influence upon the commission of crime. It would
not inflict punishment for the sake of "manifesting
and abrogating the wrong that has been done." s

In determining punishment we simply cannot fix
our attention upon how much suffering is the right-
ful equivalent for the badness of character that has
been revealed, and neglect the question concerning
the effects of the treatment. Science is to ascertain,
not how many days or years in jail "ought" to be
imposed as the expiation for the wrong done, but
the kind and amount of penalty requisite to pre-
vent crime and protect society. Our legislators and
judges are not called on to decide what suffering
will "make manifest the wrong" and "satisfy the
idea of the right." They are to determine what
punishment will hinder crime and work for the good
of society. "Justice" is, and must perforce be, a
social term; and there is no justice in the infliction

1 Cf. Paulsen, "System der Ethik," Bd. I, S. 145-147.

AND SOCIAL CONSTRAINT 15

of suffering for no social purpose. No social justi-
fication can be found for the view which holds that
"there is a natural affinity between the two ideas of
guilt and punishment, which makes it intrinsically
fitting that wherever there has been wrong pain
should be inflicted by way of expiation."

None of the advocates of the expiation theory of
punishment would admit that the diverse faculties
of man are linked together, so that the will may be
regarded as the product of the sensibility. Now
since, in their opinion, the sensibility is not the real
centre of the human being, it is difficult to compre-
hend why they would hold it responsible for the
badness of the will. If the will has freely chosen
wrong-doing, it is not the fault of the sensibility.
To add a physical evil to the moral evil, under pre-
text of expiation, is only doubling the sum of evil
without remedying it at all. Without the justi-
fication of social necessity, punishment would be as
blamable as crime; and legislators and judges, in
striking the culpable, would be their equals. When
abstraction is made of its social utility, what dif-
ference is there between murder committed by
the assassin and murder committed by the sheriff?
The latter has not even the justification of personal
interest or vengeance. The legal murder would be
more absurd than the illegal murder. It is impos-
sible to see in "expiation" a sanction which is at all
a rational consequence of crime.

When one speaks of "the moral order" as having
been "troubled by a rebellious will," and as needing
to be re-established by the suffering of the rebel, one
is entirely outside of the social question and the

16 CRIMINAL RESPONSIBILITY

proper sphere of social punishment. But looking
at the matter a moment ourselves from this extra-
social point of view, we remark that it is repugnant
to say that moral wrong can be repaired by bodily
pain, and that the price of a morally wrong act can
be paid with a certain amount of physical suffering
— a purchase of "indulgences," as it were. No, the
moral evil remains, in spite of any physical pain
which can be added to it.

According to the champions of the expiation
theory, moral evil is a sin of the free-will, altogether
undetermined by the sensibility. It is as if one pan
of a balance-scale were in the moral world, the other
in the world of sense. In the one is the free-will;
in the other is the sensibility. When the balance
is disturbed by the wrong act of the free-will, the
addition of suffering to the sensibility is expected to
restore the equilibrium. But if the will is free, it
cannot be seized or punished, it remains altogether
unaffected by the suffering of the sensibility. It
can be punished only if it wills to punish itself, for
its badness. It can do this only in case it has al-
ready so profoundly changed for the better that it
no longer deserves to be punished. Suffering can-
not make expiation for wrong-doing unless it is self-
inflicted and recognized by the agent as merited.
This cannot be caused externally. A man may be
overwhelmed with punishment and still regard it as
an accidental misfortune and not as a desert. This
is the antinomy of the expiation theory. As long
as the sinful free-will remains sinful, it is beyond
punishment and expiation. Before it can be pun-
ished and made to expiate its fault, it has to convert

AND SOCIAL CONSTRAINT * 17

itself; and after conversion, why should it be pun-
ished? The free and sinful will is beyond the reach
of punishment and beyond the possibility of a forced
expiation. It is irrational cruelty when suffering is
inflicted upon the innocent body of the victim; the
guilty will remains unpunished and unpunishable.1
Expiation simply cannot be the object of punish-
ment in those cases where the law diverges from
ethics, as when it refuses to punish the mere inten-
tion to commit a crime, and punishes but slightly,
if at all, the attempt to commit a crime. "Public
opinion will sanction capital punishment when the
blood of a brother man seems to cry for vengeance
from the ground; it would not tolerate an execution
for an attempted murder which has failed through
a pistol missing fire."2 But in intention and at-
tempt the moral guilt may be just as great as if the
wicked scheme had not happened to become frus-
trated. "In ethics, of course, [a vicious will] would
of itself suffice to constitute guilt. . . . But there is
no such searching severity in the rules of law. They,
whether civil or even criminal, never inflict penalties
upon mere internal feeling, when it has produced
no result in external conduct. So a merely mental
condition is practically never made a crime. If a
man takes an umbrella from a stand at his club,
meaning to steal it, but finds that it is his own, he
commits no crime."3 Looked at from the moral

1 Cf. Guyau, "Esquisse d'une morale sans obligation ni sanction,"
pp. 190-192.

2 Rashdall, "The Theory of Punishment," in International Journal
of Ethics, vol. II, p. 26.

* Kenny, " Outlines of Criminal Law," revised American edition,
1907, pp. 33-34.

18 CRIMINAL RESPONSIBILITY

stand-point, his intention is wicked, and may be
said to need expiation through suffering. But it
would be socially inexpedient and unjust to punish
him. This shows that punishment is not for expi-
ation.

That punitive affliction is aimed at social protec-
tion and not at expiation of moral iniquity is shown
also by the fact that the decrees of the law some-
times differ greatly from the rules of ethics. The
legal code often refuses to go with the ethical code.
The state sees no social harm in some of the personal
vices which moral sentiment condemns, and hence
would regard it as unjust to inflict penal suffering.
On the other hand, the legal code often passes be-
yond the moral code. The insight of the social
legislators discerns evils and dangers to the general
welfare not yet perceived by the common conscious-
ness. New inventions and modern exigencies of
travel and intercourse sometimes render customary
forms of conduct harmful to society. Then these
ways of acting are made crimes before they have
had time to become wrong or sinful; and fine or
imprisonment is visited upon offences which bring
neither moral blame nor social shame; for example,
driving on the one side of the street instead of on the
other, killing game out of season, getting on or off
cars while in motion. If the object of punitive
treatment were expiation, it would be wrong for
society to punish a person who damages it without
moral guilt.

Let any one who thinks that punishment is not
sufficiently justified by its being inflicted for the
protection of social rights attempt to reconcile his

AND SOCIAL CONSTRAINT 19

sense of justice with the punishment of crimes
committed in obedience to a perverted conscience.
Many fanatical murderers have been executed, who
regarded themselves, not as criminals, but as heroic
martyrs. Were they rightly put to death? If so,
the justice of their punishment had nothing to do
with the expiation of badness in their minds and
hearts. Their outrage of the social obligation to
respect life was solely an act of self-sacrifice to what
was considered a higher and more sacred obligation.
They regarded their acts as possessed of sublime
virtue. Out of supposed duty to God or to humanity
fanatics have been guilty of the most abominable
deeds, such as the assassination of rulers or the slay-
ing of supposedly heretical enemies of God. Their
punishment cannot have been justified as an expia-
tion for internal demerit, a sinful state of mind,
moral and religious guilt. Punishment for crimes
of moral and religious fanaticism can be justified
on no other ground than its necessity for the attain-
ment of social ends.1

The advocates of punishment for the purpose of
expiation would superimpose upon the principle of
social necessity a "regulator," abstract justice, as
superior to social necessity. But the only just basis
of penal responsibility is that of "the dangerous-
ness of the criminal to society." 2 The kind and
amount of punishment necessary can justly be de-
termined only by its utility.

There can be established no connection between

1 Cf. Mill, "Examination of Sir William Hamilton's Philosophy,"
4th edition, pp. 596-597.

* Cf. Parmelee, "The Principles of Anthropology and Sociology
in Their Relations to Criminal Procedure," chap. V.

20 CRIMINAL RESPONSIBILITY

the statements, "You are morally and religiously
good" — "Therefore you ought to be rewarded by
society"; or "You are morally and religiously
bad" — "Therefore you ought to be made to suffer
by society." Virtue and vice are affairs of the in-
dividual conscience; and so long as they are con-
sidered apart from their social utility, any reward or
punishment which they may deserve is the concern
of God, and not of social administration. Society's
object is to look after itself, without attempting to
usurp the place of God in distributing happiness and
unhappiness in accordance with moral and religious
merit and demerit.

The fundamental principle of punishment is that
it should be restricted to social interests. Individ-
ual liberty must not be violated by laws and penalties
concerning offences against morality and religion.
Man cannot be held responsible for his beliefs and
personal character except by his own conscience.
Society cannot rightly inflict pain except for being
anti-social. For it to punish for the sake of expiat-
ing internal faults is certainly not to convince the
punished one of social justice. Just civil punish-
ment can regard only the evidence of social damage,
and must not pass the limits of social utility.1

It has long been a pet notion of theology that
human sinfulness will have to be expiated by misery
in a future life. This woe is conceived in some cases
to be eternal. The fundamental notion is that wick-
edness must be expiated by suffering. This theolog-
ical idea of expiation was brought over into social
laws and produced evil results. Human judges,

1 Cf. Mill, "On Liberty," chap. II.

AND SOCIAL CONSTRAINT 21

speaking in the name of God, believed that they
could penetrate both into the infinite depths of the
individual will, in order to measure its malignity,
and into the infinite depths of the divine will, in
order to ascertain and apply its just decrees. More-
over, since expiation, and consequently penalty,
had to be proportional to the crime, it was necessary
to invent varieties of punishment and refinements in
suffering. Such results cannot fail to occur when-
ever any one attempts to institute expiation for
"the disturbed balance between the absolute justice
of God and the absolute freedom of the human will."
We ought never to pretend, in our penal laws, to
apply this principle. If social punishment could be
justified on no other grounds than those of the
absolute immorality of the bad will and the absolute
justice of expiatory suffering, then we should be
entirely disarmed with reference to the criminal."1

1 Cf. Fouill6e, "La liberty et le d^terminisme," p. 38.

CHAPTER II

\
PUNISHMENT FOR RETRIBUTION **r

1. Explanation of Theory

According to the retribution theory, punitive
suffering is to even up, to compensate, to requite
for evil done. Justice requires that the wrongdoer
be paid back for his wrong-doing. If anything else
happens, it lies outside of the object of punishment
as such. "We pay the penalty because we owe it,
and for no other reason; and if punishment is in-
flicted for any other reason whatever, than because
it is merited by wrong, it is a gross immorality, a
crying injustice, an abominable crime, and not what
it pretends to be. We may have regard for what-
ever considerations we please — our own conven-
ience, the good of society, the benefit of the offender;
we are fools, and worse, if we fail to do so. Having
once the right to punish, we may modify the punish-
ment according to the useful and the pleasant, but
these are external to the matter; they cannot give
us a right to punish, and nothing can do that but
criminal desert. . . . Punishment is also an end in
itself. Yes, in despite of sophistry, and in the face
of sentimentalism, and with well-nigh the whole
body of our self-styled enlightenment against them,
our people believe to this day that punishment is
inflicted for the sake of punishment."1 "Judicial

1 Bradley, "Ethical Studies," pp. 25-26.
22

CRIMINAL RESPONSIBILITY 23

punishment (jpama forensis) is not the same as
natural {poena naturalis). By means of this latter,
guilt brings a penalty on itself; but the legislator
has not to consider it in this way. Judicial punish-
ment can never be inflicted simply and solely as a
means to forward a good, other than itself, whether
that good be the benefit of the criminal or of civil
society; but it must at all times be inflicted on him,
for no other reason than because he has acted crimi-
nally. ... He must first of all be found to be pun-
ishable before there is even a thought of deriving
from the punishment any advantage for himself or
his fellow-citizens. The penal law is a categorical
imperative."1 Where crime has been committed,
loss or suffering should be inflicted upon the criminal
in return for the loss or suffering which he has caused
his victims, even though the punishment may not
be needed as a deterrent to other persons, and even
though the wrongdoer may be so hardened that
no punishment could reform him or even awaken
him for a moment to a sense of the wickedness of
his deeds. He ought, nevertheless, to be made
to suffer as a matter of retribution for his miscon-
duct.3

Punishment is inflicted upon the criminal as an
act of justice, because he merits it. The funda-
mental principle of morality is reciprocity. I must
give my neighbor an equivalent for what I get from
him; and he has no right to take from me that for
which he renders no equal return. We are to repay

1 Kant, "Werke," ix, 180, 183, "Rechtslehre," § 49.

3 Cf. Sharp and Otto, " Retribution and Deterrence in the Moral
Judgments of Common Sense," in International Journal of Ethics,
July, 1910, p. 447.

24 CRIMINAL RESPONSIBILITY

both benefits and injuries on the same basis.1 The
law of retaliation is well stated in the law of Moses:
"Thou shalt give life for life, eye for eye, tooth
for tooth, foot for foot, burning for burning, wound
for wound, and stripe for stripe." "The principle
that punishment should be merely deterrent and
reformatory is, we think, too purely utilitarian for
current opinion. That opinion seems still to incline
to the view that a man who has done wrong ought
to suffer pain in return, even if no benefit result to
him or to others from the pain; and that justice
requires this." 2

Some light is thrown on the purpose of punish-
ment when we consider the process in which the
judicial penal system developed out of the previous
systems of private revenge and lynch-law. As long
as retaliation was in the hands of private individuals,
there was no guarantee either that the offender had
to suffer or that the act of retaliation was sufficiently
discriminate. On the one hand, the injured party
may have been too weak, or otherwise unable, to
avenge himself. His readiest course then was an
appeal to the chief or the entire community for help.
On the other hand, the sympathy naturally felt for
the object of an improper and immoderate revenge
undoubtedly tended also to bring about the establish-
ment of a central judicial and executive authority.
Indiscriminate revenge had to be restricted by refer-
ring the case to a judge who was less partial, and
more discriminating, than the sufferer himself or
his friends. Besides the desire that the offender

1 Cf. Wines, "Punishment and Reformation," pp. 31-32.
• Kenny, op. cit., p. 30.

AND SOCIAL CONSTRAINT 25

should suffer and the desire that his suffering should
not exceed his guilt, there was a third factor of great
consequence which contributed to the substitution
of regulated punishment for revenge and to the rise
of the judicial organization. This was the necessity
of maintaining the general peace. For every society
it was a matter of great importance to have peace
between its various members. At first, of course,
every man took care of his own property and guarded
his own life. If he received an injury, he retaliated
or sought such redress as was possible. Though this
system of private revenge helped to keep down crime,
it also had a tendency to cause disturbance and
destruction. Any act of vengeance which went be-
yond the limits fixed by custom called forth retalia-
tion in return, and the disturbance constantly grew
and extended in the community. Blow brought
blow, revenge bred revenge. A whole series of
murders took place. Society was afflicted with
chronic feud and disorder. The state of affairs was
literally a state of private war. Such a condition
was incompatible with public well-being, and was
injurious to society as a whole.

So, by slow degrees, private revenge yielded to
social punishment. The infliction of retributive in-
jury, forbidden to the individual, was simply trans-
ferred to the group. Society, being impersonal,
could strike without provoking counter-stroke. Law
gradually displaced private vengeance and steadily
narrowed the field of self-defence. The king deemed
every aggression an affront to him. The state
regarded all outrages as breaches of the peace. It
appropriated itself to the grievances of its sub-

26 CRIMINAL RESPONSIBILITY

jects. All wrongs became crimes. It was the public
peace that had suffered, and not A or B. Crime
was a public more than a private wrong, and did
greater injury to society than to the individual;
the state, therefore, being the supreme sufferer
from crime, was also the rightful avenger. More-
over, it was generally an inconvenient, and in large
communities an almost impossible, procedure for
the whole group to administer justice in common.
Hence the dispensation of punishments naturally
tended more and more to pass into the hands of a
few leading men or one man. Thus a special author-
ity came to be commissioned with the administra-
tion of justice. Ultimately, it is the district attorney
who prosecutes the law-breaker, and not his victim.
The private avenger is succeeded by the judge and
the public executor of his sentence.1 Thus has
triumphed the idea of a paramount, social interest
in the repression of crime. The state of private war
"has been superseded by one in which a third, a
public and impartial authority (1) takes cognizance
of offences against another individual as offences
against the commonwealth; (2) apprehends the sup-
posed offender; (3) determines and applies an ob-
jective standard of judgment, the same for all, the
law; (4) tries the supposed offender according to
rules of procedure, including rules of evidence or
proof, which are also publicly promulgated; and (5)
takes upon itself the punishment of the offender."2
This brief sketch suffices to show how and why

1 Cf. Westermarck, " Origin and Development of the Moral Ideas,"
vol. I, pp. 175-176, 180-183, 490-491; and Ross, "Social Control,"
pp. 40, 120.

3 Dewey and Tufts, "Ethics," p. 456.

AND SOCIAL CONSTRAINT 27

organized retribution became substituted in place of
individual vengeance. Crime came to be regarded,
not merely as a private or personal matter, but as
an offence against the community and its established
authority, and calling for corporate chastisement.
The most important thing to bear in mind while
contemplating this historical transition from re-
venge to punishment is this: that the fundamental
principle of retribution remains the same throughout.
Even after the establishment of a judicial authority
to regulate punishment, the principle is still that of
returning evil for evil, and in proportionate measure.
Indeed, the state, with its unrestrained power, has
proved an even more terrible avenger than the in-
dividual. The most cruel and vindictive punish-
ments that malignant ingenuity could devise have
been administered under the sanction of law and
in the name of justice.1

2. Arguments in Favor of the Theory.

The ordinary discussion of the propriety of retri-
bution as the aim of punishment is rather brief
and dogmatic. The subject is simply dismissed with
a dictum based on authority and the declaration,
"Retribution is barbarous — the protection of society
is the only scientific ground for inflicting pain upon
a wrongdoer," or "Retribution is characteristic
of the punitive ideals of primitive peoples, while
deterrence and reformation are characteristic of the
most highly civilized ones." Now, in the following
discussion, I propose to mass on each side all the

lCf. Smith, "Criminal Law in the United States," pp. 57-58.

28 CRIMINAL RESPONSIBILITY

arguments I can find on that side, without endeavor-
ing in the least to give the preference to either.

The sentiment of retribution is naturally strong
in every one of us, and needs but a suitable occasion
to manifest its tremendous force. Let us test its
strength by an example.1 About a hundred years
ago a shipload of emigrants was wrecked upon an
uninhabited island in the Pacific Ocean, far from all
trade routes. There they and their descendants
have lived, unvisited by other men, until finally a
ship appears to carry them back to England. At
the time of the arrival of this ship there is in their
prison a man who has just been sentenced to be
hanged for murder. The circumstances of the crime
were these : A physician, widely beloved and trusted,
had been called in to attend some men who had been
seriously wounded in a blood feud. Soon after, he
was met on a lonely road by one of the feudists.
The latter informed the physician that, in revenge
for the services rendered to his enemies, he was about
to kill him. The doctor pleaded for his life, not for
his own sake, for he was over sixty, and, in any event,
had not many more years to live, but for his wife and
family. His wife was much younger than he, and
his children — all daughters — were not yet grown.
In reply the murderer only laughed at him, and,
after rendering escape impossible with a single shot,
proceeded in leisurely fashion to shoot him to pieces,

1 This illustration is made by combining two examples given by-
Professors Sharp and Otto to students in the University of Wis-
consin in order to find out what per cent, of them approved of retri-
bution. The results are published in the International Journal
of Ethics for April and July, 1910. Cf. also Kant, "Werke," ix,
180, 183, or Kant's "Philosophy of Law," tr. Hastie, pp. 195 ft.

AND SOCIAL CONSTRAINT. 29

making the less vital parts of the body his first target
in order to lengthen his victim's agony as much as
possible, jeering at him all the while. Now is the
community, before breaking up, its members to
scatter to different parts of the world, bound to
hang this murderer, or is it at liberty to set him free?
It being understood: (1) that a failure on the part
of the islanders to punish the crime will create no
precedent which might lead to future murders by
other persons ; (2) that while the murder was in every
respect unjustifiable, there are no grounds for the
fear that the murderer, if freed, will ever commit
another similar crime (the circumstance that re-
moves the danger of the commission of a second
similar crime is an accident, or an attack of paralysis,
which will render him a helpless invalid for the re-
mainder of his days, but has no causal connection
with the crime) ; and (3) that the murderer is incor-
rigible, a man whom no punishment could reform
or even awaken temporarily to a sense of the enor-
mity of his guilt. He feels no compunction or sorrow
of any kind at the deed; in fact, if he escapes punish-
ment, he will feel genuine satisfaction at having com-
mitted it.

The conditions of the example are intended to
make it plain that those who approve of the punish-
ment of this man do so on what can only be grounds
of retribution. Having inflicted injury upon an-
other or others, he ought to be subjected to injury
himself, as a just return. t The punishment of the
wicked is demanded for no other reason than the in-
fliction of pain itself. There lies _jJLthe_bas]s of
retribution the demand for harm for its own sake.

30 CRIMINAL RESPONSIBILITY

The judger's moral ideal demands that a person who
commits certain acts shall suffer in consequence,
whether his suffering subserves any other end or not.

Another example, equally strong for arousing the
sentiment of retribution, may be made out of "the
story of a seduction by means of a mock marriage
and of the abandonment of the woman, leaving her
without money, help, or friends, with the most ter-
rible ordeal of her life immediately before her." '

Adam Smith approved of punishment on grounds
of retribution. He maintained that it is justified
by the fact that it satisfies men's natural resentment
a sentiment "which most immediately and directly
prompts us to punish, or to inflict evil upon, another.'
"To punish is to recompence, to remunerate, . .
it is to return evil for evil that has been done. . .
He, therefore, . . . appears to deserve punishment
who ... is to some person or persons the natural
object of a resentment which the breast of every
reasonable man is ready to adopt and sympathize
with. To us, surely, that action must . . . ap-
pear to deserve punishment which everybody who
hears of it is angry with, and upon that account
rejoices to see punished." 2 " I affirm, that it is
not the view of . . . utility or hurtfulness which
is either the first or principal source of our appro-
bation and disapprobation. These sentiments are,
no doubt, enhanced and enlivened by the percep-
tion of the beauty or deformity which results from
this utility or hurtfulness. But still, I say, they

1 Sharp and Otto, in International Journal of Ethics, April, 1910,
p. 350.

2 Adam Smith, "Theory of the Moral Sentiments," part II, "Of
Merit and Demerit: or, The Objects of Reward and Punishment."

AND SOCIAL CONSTRAINT 31

are originally and essentially different from this
perception." l

Westermarck champions the position that punish-
ment is, in the main, an expression of public indigna-
tion, and intended as retribution for the wrong-
doing of the culprit.2 The question at issue is this:
Is punishment the result of the sense of justice, or
is the sense of justice the result of punishment?
Are certain acts punished by the state because re-
garded as morally wrong and worthy of punishment ;
or do certain acts come to be regarded as morally
wrong and worthy of punishment because they are
punished by the state? He maintains that punish-
ment always requires the sanction of the retributive
emotion of moral disapproval. "Punishment, in
the ordinary sense of the word, always involves an
express intention to inflict pain, whatever be the
object for which pain is inflicted. We do not punish
an ill-natured dog when we tie him up so as to pre-
vent him from doing harm, nor do we punish a luna-
tic by confining him in a mad-house. . . . First
of all, moral resentment wants to raise a protest
against wrong. And the immediate aim of pun-
ishment has always been to give expression to the
righteous indignation of the society which inflicts
it. . . . Whether its voice inspire fear or not,
whether it wake up a sleeping conscience or not, pun-
ishment, at all events, tells people in plain terms what,
in the opinion of the society, they ought not to do.
... It must not be overlooked that the infliction
of punishment upon the perpetrator of a grave

1 Ibid., part IV.

3 Westermarck, op. cit., vol. I, pp. 77-93, 169-201.

32 CRIMINAL RESPONSIBILITY

offence gratifies a strong general desire. . . . Re-
taliation is such a spontaneous expression of indigna-
tion, that people would hardly realize the offensive-
ness of an act which evokes no signs of resentment.
. . . The retributive desire is so strong, and appears
so natural, that we can neither help obeying it,
nor seriously disapprove of its being obeyed. . . .
Since the remotest ages the aggressive attitude tow-
ard this cause has been connected with an instinc-
tive desire to produce counter-pain; and, though
we may recognize that such a desire, or rather the
volition into which it tends to develop, may be
morally justifiable only if it is intended to remove
the cause of pain, we can hardly help being indulgent
to the gratification of a human instinct which seems
to be well nigh ineradicable. It is the instinctive
desire to inflict counter-pain that gives to moral in-
dignation its most important characteristic. . . .
Without it, we should no more condemn a bad man
than a poisonous plant. The reason why moral
judgments are passed on volitional beings, or their
acts, is not merely that they are volitional, but
that they are sensitive as well ; and however much
we try to concentrate our indignation on the act,
it derives its peculiar flavor from being directed
against a sensitive agent."1

Kenny also, in discussing the aim of criminal pun-
ishment, says that one purpose which the legislator
may legitimately desire to attain as a result of pun-
ishment, "distasteful as is the suggestion of it to the
great majority of modern writers, is the gratification
of the feelings of the persons injured. In early law

1 Westennarck, op. cit., vol. I, pp. 82-92.

AND SOCIAL CONSTRAINT 33

this was undoubtedly an object, often indeed the
paramount object, of punishment. . . . The current
morality of modern days generally views these feel-
ings of resentment with disapproval. Yet some
eminent Utilitarians, like Bentham (and not without
support from even so dissimilar a writer as Bishop
Butler), have considered them not unworthy of hav-
ing formal legal provision made for their gratifica-
tion. Hence, no less recent and no less eminent a
jurist than Sir James Stephen maintains that crimi-
nal procedure may justly be regarded as being to
resentment what marriage is to affection — the
legal provision for an inevitable impulse of human
nature. 'It is highly desirable/ says Stephen, 'that
criminals should be hated, that the punishment
inflicted upon them should be so contrived as to give
expression to that hatred, and to justify it so far as
public provision by means of expressing and grati-
fying a healthy natural sentiment can justify and
encourage it.' . . . The modern community, like
those ancient ones which Maine depicts, measures
here its own public vengeance by the resentment
which the victim of the crime entertains. The right
to punish must ever remain founded, in part at least,
upon the idea of retributive justice. Pain must
ever follow wrong-doing. ... It remains, therefore,
not only the right, but the duty of the state, to
punish those acts which are deemed subversive to
society, quite apart from motives merely prudential
or reformatory." l

The argument of Adam Smith, Westermarck, and
Kenny may be expressed briefly in the sentence,

1 Kenny, op. cit., pp. 28-29.

34 CRIMINAL RESPONSIBILITY

A sentiment which is so natural in all human nature
as is the demand for retributive justice must needs
be right, and worthy of being acted upon. This
argument might be strengthened by extending our
consideration beyond human nature to all animal
nature. Retribution is instinctive in all animal life,
a fact which argues for the propriety of the principle.
Injure an animal, and it bites back. Even after its
brain has been removed, it attempts to bite any one
who injures it. This shows how deeply the instinct
is inwrought into its nature. The presence of this
instinct is accounted for by its having been necessary
for survival in the struggle for existence. The in-
stinct is grounded ultimately in "the will to live,"
which is primary in every living thing, leading it to
defend itself against attack. All life is a constant
overcoming of things that would hinder or destroy
it. Vengeance has been biologically necessary for
survival. In human nature, certain refinements in
the instinct have taken place. There are marked
differences in the kind and degree of reaction pro-
voked by injury to a wild animal, a savage man, and
a civilized man. The revenge of the savage and the
animal attempts to pay back more than it receives.
But the retribution of the civilized man attempts to
be just. Justice would requite good with good,
and evil with evil, and in proportionate measure.
Those people who would condemn all retribution are
going straight against a fundamental trait of human
and of all other life, — an instinctive trait which
has been called into being by the necessities of the
struggle for existence, and which has received the
approval of the evolutionary cosmic process.

AND SOCIAL CONSTRAINT 35

In order to live, in any society, it is necessary to
be able to bite him who bites you, to strike him who
strikes you. The individual who is incapable of
returning the evil done to him is a being poorly en-
dowed for survival, and destined to disappear sooner
or later in the struggle for existence. The spirit of
retribution lies so deep in human nature, that if you
ask of a child, or a common man, whom you see
beating some one, why he is doing it, he will consider
his action fully justified if he is able to say that he
was struck first. Whoever strikes another may ex-
pect, according to both natural and social laws, to
be struck in return. This is true from top to bot-
tom of the scale of life. Man comes to formulate a
general law: It is natural that any one who inter-
feres with the happiness of his fellows should in
return be deprived of the means of being happy.
Hence, we have, as the law of punishment, that he
who does evil should receive evil in return and in
corresponding measure.1

It might almost be said that retributive punish-
ment is the order of all nature. The same relation
of evil consequences to evil deeds exists when those
consequences take place as the result, not of human
laws, but of natural laws; as when, for example,
dissolute sexual habits bring on horrible disease
and suffering.2

Another argument in favor of regarding the aim
of penalty to be retribution is found in the fact that
punishment, in order to be recognized as just, must
not be inflicted on innocent persons. For example,

1 Cf. Guyau, op. cit., pp. 203-205.

* Cf. Schopenhauer, "Die zwei Grundprobleme der Ethik," S. 102.

36 CRIMINAL RESPONSIBILITY

as the result of our knowledge concerning the work-
ing of the laws of heredity, we may feel quite sure
that the children of certain parents will develop
into criminals, and that the best thing society could
do for its own good would be to imprison or exile
these children. But such a procedure cannot take
place, because it conflicts with the general sense of
retributive justice. These children have done no
wrong; and punishment of them could not be re-
garded as a just requital for wrong-doing. So it is
impossible to deal with them in this manner. Pun-
ishment is not proper and just unless it is for retri-
bution.

That moral indignation lies at the basis of penal
treatment is indicated also by the fact that men can-
not possibly feel the same sympathy for a criminal
who suffered punishment as the consequence of his
wrong-doing as for an innocent man who was
punished by mistake, no matter how good deterrent
effects were realized. Suppose two prisoners are
being released after twenty years of imprisonment,
the one having served out his term for a heinous
crime of which he was the perpetrator, the other,
however, having been pardoned because evidence
which has just come to light proves him to be ab-
solutely innocent of the crime with which he was
charged. The sense of retributive justice allays
our feeling of sympathy in the one case, while it
increases it in the other.

Our laws try to find out the state of the will that
lay behind the harmful act. If the deed was caused
by a bad will, it is subjected to penalty; but if it
was involuntary or purely accidental, it is excused.

AND SOCIAL CONSTRAINT 37

This shows that the object of chief consideration is
the badness of the will displayed, and that the re-
gard is toward the past. Discrimination in the
treatment of harmful acts rests on the principle of
retribution: society wishes to pay back evil for evil
and in proportionate measure. That we should re-
gard retribution as the proper aim of punishment is
evidenced by our general recognition of the prin-
ciple that punishment must be proportionate to the
guilt. "Equality before the law" is a cardinal tenet
of our legal faith. Two persons who commit exactly
the same crime must be punished equally, no matter
whether the judge is certain that for the one case a
hundredth part of the punishment for the other
would be just as efficacious in deterring from future
crime. If the one criminal were sent to prison for
one week, and the other for two years, there would
arise from the people of the country a terrific storm
of protest on account of the outraged sense of retrib-
utive justice. The general principle of gradation
of penal suffering according to the magnitude of the
crime argues for retribution as the proper basis of
punishment.1

An equally significant testimony that punishment
is for retribution is borne by the principle that it
must not transgress the limits set down by moral
disapproval. Our sense of what is morally just has
established a fairly definite code of penalties, show-
ing the relation of suffering to offence. Whenever
a judge imposes a sentence that is regarded by the
people generally as either too light or too severe,
our sense of retributive justice is outraged, and we

1 Cf. Durkheim, "Division du travail," pp. 93 ff.

38 CRIMINAL RESPONSIBILITY

protest; and we are not appeased by references to
reformation, deterrence, and social protection. In
the case of an assassination, the great intellectual
and moral value of the victim constitutes an ag-
gravating circumstance. We are more violently
indignant over the murder of a great man than over
that of a drunkard or a rascal. On the other hand,
courage, worth, and genius on the part of the crimi-
nal constitute an attenuating circumstance. These
facts go to show that punishment has regard for the
past, and is intended to pay back for wrong-doing
and in proportionate measure.1

Again, it is the principle of retributive justice
which accounts for the demand that offenders who
are amenable to discipline and reformation must not
be treated more severely than incorrigible criminals.
If reformation were the proper aim of punishment,
as so many people maintain, we might be led to con-
clude that since in the case of an incorrigible offender
punishment would be absolutely useless, it should not
be at all severe; but in the case of an offender whom
punishment would reform it might be made to reach
any degree of severity necessary to effect the re-
formation. It is the demand for retributive jus-
tice that shackles the ardent reformationist, and
keeps even him from regarding incorrigibility as a
legitimate ground for exempting a person from
penalty, and corrigibility as a legitimate ground for
severity.

Further, the retributive object is clearly shown by
the fact that we regard it proper to punish the ac-

xCf. Mauxion, "fil&nents et evolution de la morality," in Revue
philosophique, 1903, pp. 1 ff., 150 ff.

AND SOCIAL CONSTRAINT 39

complished crime more severely than the attempt
that has failed. If deterrence were the aim, the
same amount of suffering would be needed to re-
strain from the attempt as to restrain from the actual
offence. And society is equally endangered by the
successful and the unsuccessful criminal, when the
lack of success is due solely to mere chance. The
reason for the difference in punishment is because
our indignation is not so deeply stirred, and we do
not see as just cause for retribution in the case of an
ineffectual attempt as in the case of an accom-
plished crime.

The retributory aim appears in all those laws
which leave it to the damaged person to decide
whether the damager shall be punished or not, and
what punishment (within certain limits) shall be
inflicted upon him. The penalty is regarded as an
indemnification to the injured party and as an ex-
pression of indignation and sympathetic resentment
on the part of society.

The retributive aim is attested also by the peculiar
aspect that suffering has when borne as penalty.
If we told the punished culprit that he was under-
going suffering for the benefit of society, he would
have a right to regard himself as a hero, a devoted
martyr. But this is not what we wish him to think,
and it is not our thought. Punishment always in-
volves opprobrium. It expresses the detestation of
society. The acts which the law punishes are, in
general, acts which society condemns as wrong; and
it is their wrongness which is regarded as the cause
and justification of their being punished.

Men have always affirmed that there ought to

40 CRIMINAL RESPONSIBILITY

be an intrinsic connection between punishment and
resentment. This affirmation is recognized most
clearly in the primitive law of talion — an eye for an
eye, a tooth for a tooth, a life for a life, but it exists
also in nearly all other laws. Since the retributive
principle has received the approval of practically all
peoples in all ages, it is not lightly to be rejected as
improper.

3. Arguments against the Theory

Retribution is very generally condemned; but it
is surprising how seldom the condemnation is sup-
ported by reasoned argument. As a rule, if a book
or a teacher discusses the subject at all, there is
simply an appeal to authority or a disgraceful ad
haminem argument. Now, the considerations which
have been massed together in favor of retribution
are very powerful, and require to be met by others
of equal force. In fact, the question seems rather
more open to doubt than most lecturers or writers
would have us believe. Let us present the various
arguments against retribution with as great force
as we can, realizing, however, that readers may
divide in opinion as to which set is the more con-
vincing.

The considerations against regarding punishment
as retributive may be divided into three groups,
according to whether they look at the matter from
the stand-point (1) of the person punishing, or (2)
of the person punished, or (3) of society in general.
The first group of arguments condemn the sentiment
of resentment and the motive of vengeance as being
unworthy in the persons punishing. The second

AND SOCIAL CONSTRAINT 41

maintain that the criminal is a diseased person and
in need of treatment rather than punishment. The
third consider punishment out of regard for the past
as socially useless and morally unjust. Let us look
at the various arguments more in detail.

In the first place, then, the motive of punishing
for retribution is unworthy of a moral person.

Those theorists who seek to justify retributive
punishment on the ground that resentment is a
natural instinct in man, as well as in all other creat-
ures, are able to prove neither the legitimacy of the
generalization nor the validity of the conclusion
drawn. As a matter of fact, the generalization that
every living thing naturally tends to return blow for
blow is illegitimate. The reflex action which takes
place in case of sudden attack is not always toward
counter-attack. The snail draws back into his shell
and remains motionless; the dove endeavors to
hide herself; the gazelle attempts to flee. Among
men, the same traits are often found. Archeolo-
gists agree in declaring that our primitive ancestors
were endowed with piety, industrious activity, hon-
esty, justice, and kindness. Travellers, geographers,
and ethnologists testify that present-day savages
are generally "good." Finally, the scientists con-
cerned with the study of animal life tell us of the kind
co-operation, mutual assistance, and heroic self-
abnegation to be seen among simian families and
even among ants and bees.1 In view of such testi-
mony, we are led to doubt the correctness of the view
that regards vengeance and ferocity as natural and
instinctive in every living being. But, more to the

1 Cf. De Quir6s, "Modern Theories of Criminality," pp. 43-44.

42 CRIMINAL RESPONSIBILITY

point, the human individual is not simply one in-
stinct. The tendency to return evil for evil is sim-
ply one among many other tendencies; and may be
entirely overcome by these others. Still further,
man is guided more by intelligence and reason than
by instinct. So, when he concludes that it is un-
reasonable and unjust to give play to the vengeful
impulse, his acts follow in accordance with that con-
clusion.

It is characteristic of rude communities that the
administration of justice is influenced by the general
feeling of sympathy with the victim of wrong, and
that the avenging punishment is in accordance with
the impulses of the aggrieved. But the developed
moral consciousness cannot regard with indifference
the infliction of pain, even on a criminal. It pro-
nounces it both unreasonable and cruel that any
one should be tormented to no purpose. When suf-
fering is inflicted, it must not be as an end in itself,
but as a means of attaining some good. It must
be given, not because wrong has been done, but
in order that wrong may not be done. The object
must be either to reform the criminal or to deter
from crime and protect society.1

Plato said that a reasonable man punished either
for the sake of deterring from wickedness, or with a
view to correcting the offender.2 Aristotle regarded
punishment as a moral medicine.3 Seneca taught
that the law, in punishing wrong, aims at three ends:
"either that it may correct him whom it punishes,

1 Cf. Westermarck, op. cit., vol. I, p. 80.
3 Cf. Plato, "Protagoras," p. 324; "Politicus," p. 293; "Gorgias,"
p. 479; "Laws," ix, 854; xi, 934; xii, 944.
* Cf. Aristotle, "Nicomachean Ethics," ii, 3, 4.

AND SOCIAL CONSTRAINT 43

or that his punishment may render other men better,
or that, by bad men being put out of the way, the
rest may live without fear." ■ Hugo Grotius main-
tained that "Man is not rightly punished by man
merely for the sake of punishment " ; advantage alone
makes punishment right — "either the advantage
of the offender, or of him who suffers by the offence,
or of persons in general." 2

The moral inadequacy of the retributive principle
was well stated by Hobbes in his "Leviathan." "A
seventh law of nature is, that in revenges, that is,
retribution of evil for evil, men look not at the great-
ness of the evil past, bid the greatness of the good to
follow. Whereby we are forbidden to inflict pun-
ishment with any other design than for correction
of the offender, or direction of others. For this law
is consequent to the next before it, that commandeth
pardon, upon security of the future time. Besides,
revenge, without respect to the example and profit
to come, is a triumph, or glorying in the hurt of an-
other tending to no end; for the end is always some-
what to come; and glorying to no end is vainglory
and contrary to reason, and to hurt without reason
tendeth to the introduction of war which is against
the law of nature, and is commonly styled by the
name of cruelty." 3

If the proper aim of punishment were retribution
— the returning of evil for evil and in proportionate
measure — how could the amount of punishment due
be determined in case of such offences as perjury,

1 Seneca, "De dementia," i, 22; cf. "De ira," i, 19.
* Grotius, "De jure belli et pacis," ii. 20, 4 ff. Cf. Westermarck,
op. cU., vol. I, pp. 80-81.
•Hobbes, "Leviathan," chap. XV.

44 CRIMINAL RESPONSIBILITY

deception, and treason?1 Must society lie to the
liar, deceive the deceiver, and betray the traitor?
Seneca asked wittily, "Would any one think himself
to be in his perfect mind if he were to return kicks
to a mule or bites to a dog?" 2

Punishment based on vengeance usually exceeds
justice. Whenever the spirit of vindictiveness has
ruled, retaliation has not been regulated by the prin-
ciple of proportionate measure to the injury. A
punishment was proportioned, not according to the
magnitude of the harm, but according to the dignity
and power of the person harmed. The avenger did
not content himself with returning blow for blow;
he was apt to be satisfied only by the death of the
offender. A slight offence against the king was
avenged by death. In countries where slavery
existed, law and punishment treated quite differently
the slave and the free man. Where one race had
another under subjection, the murder of a member
of the superior race was apt to be recompensed by
the slaughter of a number of the members of the in-
ferior one. In order to punish for the murder of an
Englishman or a Frenchman or a German, a whole
village in South Africa was liable to be burned, or an
entire population massacred. The caste system in
India has a penal code that is minutely regulated
according to the value of the individual. Penalties
for crime are arranged in direct proportion to the
rank of the victim and in inverse proportion to the
rank of the culpable. These facts go to show that
when punishment is motived by the desire for retali-

1 Cf. Wundt, " Ethik," Bd. II, S. 145.
* Seneca, " De ira," iii, 26/.

AND SOCIAL CONSTRAINT 45

ation, it is apt to exceed the limits of equity. The
spirit of vengeance is incapable of administering
justice. It cannot judge calmly and wisely what
measures will best serve the social interests. Vin-
dictive legal procedure tends to carry to excess the
authority of society over the individual and to
violate the rights of personality.

In the superior social state in which we live, the
individual has no need of defending himself. Ha-
tred and vengeance are unjustifiable. If any one is
robbed, or struck, or hurt in any way, he may com-
plain to the police and the law, who will redress his
wrongs and preserve the general social interest.1

The principle that he who injures society should
be injured by society is wrong. Good acts call for
good return. Bad acts call also for good return.
The vicious man and the criminal, then, are not to
be visited with evil as evil. The pain that may be
inflicted is not to be inflicted merely as such. It is
to be regarded as a means to good. As Plato said,
the physician sometimes causes suffering to the
patient with a view to healing or curing him. The
vicious man and the criminal are to be regarded as
sick, and are to be treated accordingly. Retributive
justice partakes of the nature of vengeance. In its
place there ought to be substituted charity or love.
The final aim of all action, public as well as private,
should be charity, — charity for all men, no matter
what their individual value in moral, intellectual,
or physical attainments. Vengeance is not a proper
principle in social action. One harm cannot be
evened up by the infliction of another.2

1 Cf. Guyau, op. tit., p. 21 1 . * Cf. Fouiltee, op. tit., pp. 328-329.

46 CRIMINAL RESPONSIBILITY

Man has long outgrown the stage at which the
normal reparation given to the injured consisted
in retribution inflicted on the wrongdoer. He once
thought it as clearly right to requite injuries as to
repay benefits; but now he thinks it never right to
harm any one, however he himself may have been
harmed. Though this is his view of resentment in
individual action, he keeps the old idea of retaliation
in collective action, that is, in criminal punishment.
Current opinion inclines to think that justice re-
quires that a man who has done wrong ought to suffer
pain in return, even if no benefit result to him or to
others.1

The principle of retaliation could be admitted to
be proper for private life, that is, for the regulation
of relations between individual and individual, much
more easily than for public life and state action.
The state is too exalted to be able to inflict evil on
an individual solely to get even with him. It can-
not administer punishment to retaliate. It would
itself be immoral and criminal if it attempted to re-
quite the brutality of murder with the same brutal-
ity. Hatred and revenge are affections which should
have no place in the collective will and action.
That public administration of justice is, or should
be, wholly free from passion constitutes its infinite
superiority over private administration of justice.
The public judicial decision concerning right and
wrong must be above all influence from emotion.2

Punishment, even though it be severe, may be
used to improve the wrongdoer and to serve as a

1 Cf. Sidgwick, "Methods of Ethics," p. 280.
■ Cf. Wundt, op. cit., Bd. II, S. 145.

AND SOCIAL CONSTRAINT 47

warning to those who might be tempted to imitate
him. But brutal repression, which regards only the
act and closes its eyes to the circumstances in which
it was produced, is revolting to the moral conscience.
Punishment is the more apt to be accepted and to
prove efficacious according to the degree in which it
is just and is meted out by the desire to lead back
to the right way. It is sure to meet with revolt and
to provoke further evil when it is dictated by the
spirit of vengeance.1

Punishment under the sway of the impulse for
revenge, for gratification of hatred and spite, is al-
together degrading to man. It lowers the punisher
to the same level with the culprit. What difference
is there in intrinsic moral value between the criminal
when he strikes his enemy out of hatred and the
desire to make him suffer, and society when it strikes
the criminal out of hatred and the desire to make
him suffer? Yet this is to be the motive of penal
action, according to the theory of retribution. Pun-
ishment is to have the character of a passionate
reaction, a brutal gratification of vengeance. The
offender must be made to smart for the sake of the
pain. It is precisely the same unworthy and savage
incitement which led the less civilized peoples to
punish animals, infants, the relatives and friends of
the offender, with never a thought of responsibility
or of social utility. The one and only incentive was
the desire of vengeance, of causing suffering. It is
the same motive, still, in the somewhat more refined
theory of punishment for retribution. This theory
raises not the questions of responsibility, of deterrent

1 Cf. DuBois, "The Psychic Treatment of Nervous Disorders,"
p. 73.

48 CRIMINAL RESPONSIBILITY

and reformatory effects, and of social utility. But
is there any great difference between the joy of the
savage as he dances around his tortured enemy and
the joy experienced by us as we read of the arrest,
condemnation, and punishment of a criminal?

The second group of arguments against regarding
retribution as the aim of punishment look at the
matter from the stand-point of the victim. They
maintain, in brief, that the criminal is a diseased
person needing treatment and not punishment.

The retributory aim is founded on a wrong princi-
ple. It is based on belief in freedom and responsi-
bility. Every man is regarded as free, both in acting
and in choosing. If he commits a crime, he is re-
sponsible, and should be made to suffer for it. He
ought not to have done it. The degree of his bad-
ness and the amount of punitive affliction due are
measured by the magnitude of the harm. The basis
of reference in determining the punishment is the
gravity of the crime. The criminal is lost sight of,
except as being the suitable object for the chastise-
ment decided on. This is the philosophy on which
the retributive idea rests.

But science and reason have about concluded that
freedom and responsibility are conceptions which
cannot be used as a basis for treatment of the wrong-
doer. The principle that the malefactor is such by
free and deliberate choice and therefore deserves to
be punished is a gratuitous assumption. A criminal
act is as much an inevitable result of certain neces-
sary causes as is a flash of lightning or an ebb of the
tide.1 The criminal merits nothing but pity, cer-
tainly not cruelty.

1 See part II for amplification of this idea.

AND SOCIAL CONSTRAINT 49

Free or not, the offender is a being endowed with
intelligence. He rightly demands of the laws that
they be reasonable. In consulting his reason, he
ought to be able to be of the same mind as the judge
who decides his punishment. Unless our laws and
penalties are such that reason may be convinced of
their justice, they are not different from the procedure
among brutes, with whom there reigns no law but
that of the strongest. "What erring human nature
deserves or merits, it is just it should have. But
in the end, a moral agent deserves to be a moral
agent; and hence deserves that punishments in-
flicted should be corrective, not merely retributive.
Every wrongdoer should have his due. But what
is his due? Can we measure it by his past alone; or
is it due every one to regard him as a man with a
future as well? as having possibilities for good as well
as achievements in bad? Those who are responsible
for the infliction of punishment have, as well as those
punished, to meet the requirements of justice; and
failure to employ the means and instrumentalities
of punishment in a way to lead, so far as possible,
the wrongdoer to reconsideration of conduct and re-
formation of disposition, cannot shelter itself under
the plea that it vindicates law. Such failure comes
rather from thoughtless custom; from a lazy unwill-
ingness to find better means; from an admixture of
pride with lack of sympathy for others; from a desire
to maintain things as they are rather than go to the
causes which generate criminals." ' .

The work of the Italian school of criminal an-
thropologists and sociologists has contributed a great

1 Dewey and Tufts, op. cit., p. 417.

50 CRIMINAL RESPONSIBILITY

deal toward establishing the opinion that the crim-
inal is a necessary product of abnormal biological
conditions and adverse social circumstances. This
fact constitutes a very strong argument against
the retributive notion of punishment. Morrison, in
his introduction to Lombroso's "Female Offender,"
gives an excellent statement of this position, which
may be epitomized as follows : The retribution theory
rests on the belief that the criminal is such as the
result of free choice, that originally his physical and
mental constitution was made up of the same ele-
ments as those of the law-abiding men of the com-
munity. But this belief is erroneous. Vast numbers
of the criminal population live under anomalous bio-
logical and social conditions; and it is these condi-
tions acting upon the offender either independently
or, as is more often the case, in combination, which
make him what he is. Retributive punishment,
however, pays little attention to these facts. It
assumes that the wrongdoer was existing under
the same circumstances as an ordinary man. It
is administered on this hypothesis, which is funda-
mentally false. It would subject all offenders con-
victed of the same offence to the same length of
sentence, the same penal treatment, the same puni-
tive regulations in every shape and form. But the
principle of equality of sentences is fundamentally
erroneous. The duration and nature of corrective
treatment must be adjusted to the character of the
wrongdoer as well as to the nature of the wrong.
In other words, judicial sentences and disciplinary
affliction must be determined by the social and
biological conditions of the malefactor quite as much

AND SOCIAL CONSTRAINT 51

as by his misdeed. According to the maxim that
the punishment should be adjusted to the crime,
offenders who have been guilty of the same offence
should be sentenced to exactly the same penal
treatment. But this maxim is departed from even
now if the one culprit is a child while the other is
of mature years, or if the one is a man and the other
a woman, or if the one is feeble-minded while the
other is perfectly sane. In these instances justice
sets aside the notion that two misdemeanors of equal
gravity are to be dealt with by awarding the same
amount of penalty to each. But this principle of
adjusting the methods of treatment to the nature of
the delinquent as well as to the nature of the offence
is practically ignored in all other cases. Except in
glaring instances of lunacy the court takes little or
no cognizance of the individual and social conditions
of the transgressor. Uniformity of penal dealings
rests upon the assumption that all evil-doers are of
the same type and are produced by exactly the same
causes. A practical acquaintance with criminals
shows that this is not the fact. The criminal popu-
lation is composed of many types: casual offenders
who differ but little from ordinary men; juvenile
delinquents; weak-minded, insane, and epileptic
offenders; drunkards, beggars, and vagrants; pro-
fessional thieves, etc. It is useless applying the
same method of penal correction to each and all of
these classes of offenders. The treatment must be
differentiated, and determined as far as practicable
by the kind of type to which the criminal belongs.1

1 Cf. Morrison, in introduction to Lombroso's " Female Offender,"
pp. viii-xx.

52 CRIMINAL RESPONSIBILITY

Guyau gives a forcible statement of the argument
based on consideration of the criminal, which may
be summarized as follows: The principle of retribu-
tive justice is "To each according to his works."
He who does much should receive much. He who
does little should receive little. He who does
evil should receive evil. Notice first that the last
statement cannot be deduced from the preceding.
From the proposition that the less service calls for
the less recognition, it does not follow that an of-
fence calls for vengeance. But even the two pre-
ceding propositions are contestable as formulations
of the moral ideal. They confuse the moral and the
social points of view. "To each according to his
works" is a good working principle to regulate the
economic order and social contracts; but it cannot
be regarded as the standard of moral appraisal. It
simply means that in economic intercourse, in-
dependently of good and bad intentions, objects
should exchange for their equals in value — the in-
dividual who gives a product of considerable worth
should not receive in exchange something insig-
nificant. This is a principle of economic exchange,
of interested action. It is not the criterion of dis-
interested action or moral virtue. In the moral
realm, where the will is the principal object of con-
sideration, and where infinite value attaches to all
personality, the law of retributive justice loses its
force. In the material and economic order, evil un-
requited shocks us as something anti-social, a dis-
turbing element in the social equilibrium. But in
the moral order a different condition exists. That
goodness should receive the approval of all, and that

AND SOCIAL CONSTRAINT 53

badness should receive the disapproval of all, is
most rational. But moral approval and disapproval
as such must not be changed into coercive and
afflictive social action. To the affirmation "You
are good" or "You are bad" we must not add,
"Therefore we must make you rejoice" or "We must
make you suffer." Virtue and vice are affairs of
the individual conscience. The moral ideal would
be to make all men good and happy. In accordance
with this principle, criminals and wild human beasts
should be treated with indulgence and pity. No
matter whether their ferocity be regarded as fatal
or free, they are always to be pitied. Why should
we add to their moral evil a physical evil as well?
In place of the narrow retributive justice, which
refuses good to those who are so unfortunate as to
be bad, there must be substituted a larger justice,
which would give good to all, considering neither
which hand gives nor which hand receives. This
is the only legitimate principle from the point of
view of pure morality. The criminal retains even
before our own laws certain rights. Before the
moral law he possesses all the rights of personality.
Just as no man can sell himself into slavery, so no
moral being can forfeit his right of moral attain-
ment. To take away from any one, or to refuse to
furnish to any one, the chance of attaining the moral
good cannot be justified. You say that it is a suf-
ficient reason that the criminal is bad. Is it in order
to make him better that you take recourse to punish-
ment? No; that is an end which may be attained
better by some other means. Your principal aim
is retribution, to produce suffering without further

54 CRIMINAL RESPONSIBILITY

object. As if it were not already evil enough to be
bad ! From him that has not is taken even the little
that he has.1

The third group of arguments against regarding
retribution as a right principle look at the matter
from the stand-point of society, and maintain that
retribution is socially useless and even harmful.
The only proper grounds for administering legal
chastisement are out of regard for the future. When
the criminal is made to suffer, it should not be on
account of what he has done and because he merits
suffering, but in order that he may not do anything
similar in the future. Punishment is to consider,
not past realities (they could not have been other
than they were, and nothing done now can make
them any different), but future possibilities. It is
to be a force toward making the future what soci-
ety desires it to be. Society has a right to restrain
the liberty of a criminal only in so far as he is ca-
pable of doing further harm. If he should go vol-
untarily to some desert island, from which a return
would be impossible, then society would be with-
out rights over him. Its future protection would
be guaranteed. It would have no right to follow
him and cause him to undergo a certain amount of
suffering merely for the sake of the affliction.

In fact, we may even push this principle to the
extreme and yet affirm its validity. Let us suppose
that the state of human affairs should become so
changed that punishment would not be socially
necessary, and that rewarding an offender would be
a more effectual means of improving his character

1 Cf. Guyau, op. tit., pp. 192-197.

AND SOCIAL CONSTRAINT 55

and protecting society than chastising him, then
punishment would be superseded, and even the sen-
timent of vengeance and retribution, having no fur-
ther use in the changed circumstances of mankind,
would die away.1 If a term in a hospital, with
liberal diet, genial company, free communication
with the outside world, artistic rooms, abundant
leisure, and varied amusement were found in prac-
tice to be more deterrent and more reformative than
solitary confinement, a plank bed, and diet of bread
and water, then who would forbid the institution of
a code of graduated rewards in place of our present
system of pain-giving punishments?2

The retribution theory would afflict the offender .
without reference to social utility. But why in-
crease the amount of suffering in a world that is
already too full of it? Considered entirely apart
from its effects, there would be no moral propriety
in the infliction of pain for its own sake. When a
crime is committed, a double evil enters the world:
the victim's pain and the criminal's moral pollution.
Is the matter improved by the addition of a third
evil — the pain of punishment, which by hypothesis
is to do no good to the victim, the offender, or
society? s

The retributive theory cannot account satisfacto-
rily for the principle that unintentional harm is not
requited. The real reason is that society recognizes
that in the case of accidental or involuntary in-

: Cf. Mill, "An Examination of Sir William Hamilton's Philoso-
phy," 4th edition, p. 594.

aCf. Rashdall, "The Theory of Punishment," in International
Journal of Ethics, vol. II, p. 22.

* Cf. ibid., p. 22.

56 CRIMINAL RESPONSIBILITY

jury the will of the damage-doer is not a source of
future danger, and that to punish such an offender
would be socially iriefficacioiis. It is this matter of
efficacy for future protection that is the criterion.
In fact, when society believes that the involuntary
or accidental harm was the result of lack of atten-
tion, it may decide to administer punishment in
order that in future the attention may be mechani-
cally excited or sustained by the fear of punishment.
Society wishes greater carefulness in social inter-
course, so it gives the punishment in order to develop
it. It is the principle of social protection that leads
society to threaten (and to inflict, in order to make
its threats believed) a very severe punishment in cer-
tain kinds of negligence; for example, the negligence
of a train despatcher or a railroad engineer which
has caused serious injury, no matter how much or
how little moral blame may be involved.

Another fact going to show that the justification
of punishment is not retribution for the past, but is
social necessity of prevention, is the fact that to
certain classes of offences, like political and military
ones, extremely grave penalties are attached. So-
ciety does not want soldiers to be guilty of insub-
ordination or sentinels to be negligent while on duty,
and so it sometimes punishes beyond all proportion
to the moral blame and actual damage in the par-
ticular case.

A further argument to the same effect is that the
law sometimes punishes acts which in themselves
could not arouse any moral resentment, and pun-
ishes other acts with much greater severity than
would correspond with the moral resentment which

AND SOCIAL CONSTRAINT 57

they evoke. The state is intent on securing the
socially most desirable end. In order to do this it
has the right to sacrifice the welfare of individuals;
and it does this sometimes even in cases where no
crime has been committed. If social interest and
expediency are justifiable principles of social action
in such cases as these, why do we seek for a different
ground in the treatment of criminals? 1

The impracticability of adjusting punishment to
offence is also an argument against the retributive
conception. On the one hand, it is impossible to
obtain any accurate or satisfactory measure of the
wrong done by the malefactor. How can we scale,
with reference to each other, the amount of damage
caused in the case of a libel, a deception, a perjury,
a seduction, a breach of promise to marry, a watch-
man's negligence of duty? On the other hand, the
amount of suffering experienced by the punished
victim cannot be exactly calculated. It depends
on the individual's temperament. The infamy of
even the most trivial arrest and mention of it in the
newspapers causes one offender more intense suffer-
ing than ten years of imprisonment cause another.
Let any one sit down and attempt to write out a list
of crimes with the number of months' imprisonment
which they intrinsically merit as retribution, and he
will soon conclude that the retributive principle of
returning evil for evil and in proportionate measure
is thoroughly impracticable.

There can be no real equivalence between the
amount of suffering inflicted by the criminal and
that which he sustains in punishment. It is im-

1 Cf. Westermarck, op. cit., vol. I, p. 199.

58 CRIMINAL RESPONSIBILITY

possible for society to calculate either the amount
of pain which the criminal's victims have experienced
or the amount of pain which the criminal undergoes
in his punishment. The death penalty for murder
is the only case where there is even an apparent uni-
formity between the two sufferings. But even here
the likeness is only superficial. The amount of suf-
fering in death depends almost wholly upon the cir-
cumstances; and the circumstances of the murdered
victim and of the executed murderer are entirely
different. In the case of imprisonment with hard
labor as the penalty for robbery, or attempted rob-
bery, there is obviously no equivalence between the
suffering caused by the crime and the suffering caused
by the punishment. So, when this theory maintains
that the justice of punitive affliction consists in
equality between the gravity of the crime and the
severity of the punishment, it is weakened by the
consideration that neither a crime nor its punish-
ment admits of quantitative measurement.1

Society gains nothing by the principle of retribu-
tion and can lose nothing by abandoning it. Re-
taliation is not only useless; it works against de-
terrence and reformation. Society needs not that
its criminals should suffer, but that it should be
effectually protected and that they should be
changed into constructive social forces. Instead of
revenge for past damage, it requires security from
future injury, which the retributive principle not
only fails to achieve, but tends to defeat, by hard-
ening the young delinquent and strengthening the

1 Cf. T. H. Green, "Principles of Political Obligation," "Works,"
vol. II, pp. 494, 502, paragraphs 184, 190.

AND SOCIAL CONSTRAINT 59

purpose of the faltering. By meeting violence with
violence it arouses a vindictive and retaliatory
spirit. Our jails and prisons seem but to manu-
facture criminals, and "the worst prison sends out
the worst prisoners." Thus vengeful severity oper-
ates as an incentive to further crimes. It kindles
fires of resentment where they did not exist, and
fans the flames of criminal mania.

CHAPTER III

- (3

PUNISHMENT FOR DETERRENCE
1. Explanation and Defence of Theory

Punishment, according to the theory of deter-
rence, is not an end in itself, but is a means of attain-
ing an end. It is inflicted, not because wrong has
been done, but in order that wrong may not be done.
The theory is based on sociology and psychology.
Sociology furnishes the ultimate aim — the protec-
tion of society; psychology furnishes the means —
the influence of intimidation in restraining from
crime. Penal practice is to be regarded as purely a
means of intimidation for social preservation. In
punishing the criminal, whether by fine, imprison-
ment, or execution, the aim is simply that of de-
terring him from further crime and at the same time
frightening others who might be tempted to imitate
him.

Plato put into the mouth of Protagoras these very
reasonable words: "No one punishes those who have
been guilty of injustice solely because they have
committed injustice, unless indeed he punishes in
a brutal and unreasonable manner. When any one
makes use of his reason in inflicting punishment, he
punishes, not on account of the fault that is past, for
no one can bring it about that what has been done
may not have been done, but on account of a fault

60

CRIMINAL RESPONSIBILITY 61

to come, in order that the person punished may not
again commit the fault and that his punishment
may restrain from similar acts those persons who
witness the punishment." ■

Beccaria expressed the purpose of punishment as
follows: "The end of punishment is simply to pre-
vent the criminal from doing further injury to soci-
ety and to prevent others from committing the like
offence. Such punishments, therefore, and such a
mode of inflicting them, ought to be chosen as will
make the strongest and most lasting impression
on the minds of others with the least torment to
the body of the criminal." 2

Hobbes said that "the aim of punishment is not
a revenge, but terror." 8 Hume's conception of the
deterrent influence of penalty was expressed thus:
"All laws being founded on rewards and punish-
ments, it is supposed as a fundamental principle,
that these motives have a regujar and uniform in-
fluence on the mind, and both produce the good and
prevent the evil actions."4 Bentham maintained
that "example is the most important end of all."5

Schopenhauer's view of the principle that ought to
lie at the basis of criminal law was that it is not really
the man, but only the deed which is punished, in
order that it may not recur. He said that the crimi-

1 Plato, "Protagoras," p. 324. See also "Gorgias," p. 479;
"Politicus," p. 293; "Laws," ix, 854; "Laws," xi, 934; "Laws,"
xii, 944.

3 Beccaria, "Traite" des delits et peines," chap. XII.
8 Hobbes, "Leviathan," chap. XX VIII.

4 Hume, " Enquiry Concerning Human Understanding," ed. Selby-
Bigge, 2d edition, 1882, section VIII, part II.

"Bentham, "Principles of Morals and Legislation," p. 170. See
also his "Rationale of Punishment," pp. 19 #

62 CRIMINAL RESPONSIBILITY

nal is merely the subject in whom the deed is pun-
ished, in order that the law may retain its deterrent
power. The measure of the penalty is determined
by considerations of the magnitude of the injury to
be guarded against and the strength of the induce-
ments which impel to the forbidden action. The
criminal code should be simply a register of counter-
motives for possible criminal deeds, each of these
motives decidedly outweighing those which lead
to the undesirable behavior. If the legal threats
fail to accomplish their object in particular cases,
the threatened chastisement must be given; other-
wise the law and its penalties would be impotent in
all future cases. That penal suffering ought to bear
a proper proportion to the crime does not depend
upon need of expiation or retribution, but rather on
the fact that the pledge ought to be proportionate
to the value of that for which it answers.1

The predominance of the deterrent idea over the
retributive idea is well illustrated in the following
story: A prisoner, condemned for horse-stealing,
when asked by the judge why capital sentence should
not be pronounced against him, answered, "It is
hard to hang a man for only stealing a horse " ; where-
upon the judge replied, "Man, thou art not to be
hanged only for stealing a horse, but that horses
may not be stolen."2

The deterrent operation of punishment may be
sketched as follows: Punishment may affect the
body of the offender, through imprisonment or exe-

1 Cf. Schopenhauer, "Die Welt als Wille und Vorstellung," Bd.
II, S. 685; "Ueber die Freiheit des Willens," S. 101.
a Cf. Kenny, op. cit., p. 27.

AND SOCIAL CONSTRAINT 63

cution, so as to deprive him, either temporarily or
permanently, of the power to repeat the offence.
It may influence his mind, counteracting his crimi-
nal habits, or even eradicating them, by the terror
which it inspires, and may train him to habits of
industry and a sense of duty. It may, in addition,
act on the minds of others, deterring them by fear.1
"It is supposed that the sad fate of the condemned
criminal will lead him to give up his unlawful career
upon liberation in order to escape future discom-
forts; while the dread spectacle of his fate should
restrain possible offenders by arousing in them fear
of a like suffering." 2

Punishment's sanction lies in the fact that as a
promise or threat preceding action it tends mechani-
cally to produce it. This accomplished, its value is
exhausted and its justification ended. It is simply
a means of protection, and is based on belief in
determinism. The idea of future pain enters as a
causal motive to prevent crime. This explains why
idiots are no longer punished. The practice was
given up after trial showed that fear of penalty had
no efficacious influence upon them. An act con-
trary to the social order is proof that neither the
motive of respect for the interests of society nor the
motive of letting reason control passion has been
strong enough. Hence the judge has the function
of applying punishment so as to strengthen these
motives. Man is a machine that thinks, and has
ideas for springs. Each thought is a force. The
thought of future punishment is a force as truly as

1 Cf. ibid., p. 28.

8 Parsons, "Responsibility for Crime," p. 61.

64 CRIMINAL RESPONSIBILITY

any other idea, and is per se no less fatal or less
powerful. It may counteract other forces in the
mind of man. Hence punishment may be threat-
ened and used as a means of efficacious influence
upon action. The fear of punishment will tend to
cause a man to avoid the act with which the idea
of punishment is associated." '

The deterrent aim appears most clearly in con-
trast with the retributive or "retrospective" theory.
When we admit that penalty is inflicted because
a crime has been committed, we mean simply that
this because is the occasion of punishment; we do
not mean that it is the ground of punishment.
The latter is to be sought in the effect; and the ef-
fect is necessarily in the future — punishment is in-
flicted upon the criminal in order that crime may not
be committed. We cover up a well because a child
has fallen into it, and in order that a similar event
may not occur again. We lock our houses because
houses have been entered and robbed, and in order
that loss may not occur to us. If it were not for
the in order that, the because would not determine us
to act as we do. If there were no future, there would
be absolutely no aims and no acts.2

Punishment is prospective rather than retrospec-
tive. It aims to prevent harm. This object gives
the true measure for determining the amount re-
quired. This is found in the importance of the in-
terest harmed, relatively to the system of rights of
which it forms a part, and in the degree of terror

1 Cf. FouiDee, op. c&, p. 41, and Guyau, "La morale anglaise
contemporaine," pp. 212, 361-362.
* Cf. Paulsen, op. ciL, Bd. II, S. 147.

AND SOCIAL CONSTRAINT 65

which must be associated with the crime in order to
protect the interest in question. The amount of
punishment is measured by social necessity; and
this is a changing standard. A punishment which
may be needed at an earlier stage of social progress
— for example, the death penalty for theft — be-
comes unjust, because no longer a social necessity,
at a later stage.1

Society, in dealing with a damage-doer, aims prin-
cipally at protecting itself from further damage. It
seeks protection from this offender and from would-
be offenders. It regards the infliction of pain on the
malefactor and the threat of similar pain for future
malefactors as the most rational and efficacious
means of warding off harm, and as therebj' justifiable.
The sole justification for afflictive treatment of the
criminal is its deterrent effect. If punishment in-
timidated nobody, it would sink from the plane of
rational action to the level of senseless cruelty. The
social scientist rejects absolutely the retaliatory
aspect of punishment. The only scientific ground
for inflicting pain is protection. This practical aim,
under one form or another, already shapes penal
practice in a slight degree. The sooner it comes to
prevail and to be unreservedly adopted by legal
writers and penologists, the better. "A scientific
penology will graduate punishments primarily accord-
ing to the harmfulness of the offence to society, and sec-
ondarily, according to the attractiveness of the offence
to the criminal. . . . The social mission of the law is
not to make evil-doers smart, but to deter from evil
doing. Whatever the cave-men may say, not the

• Cf. Seth, op. at., p. 305.

66 CRIMINAL RESPONSIBILITY

crimes punished, but the crimes prevented should
measure the worth of the law; and such a standard,
were the statistics forthcoming, might show our
courts and jails to be ten times as useful as they
appear." 1

The deterrent aim is seen clearly in those cases
where criminal law and punishment assume a sever-
ity far beyond the moral gravity of the offence.
For instance,2 the punishment of death has been
inflicted on the man who dressed himself like a
woman or the woman who dressed herself like a man ;
on persons who carried off or changed the boundaries
placed in the fields by public authority; on counter-
feiters, thieves, pick-pockets, horse-stealers, cattle-
stealers, sheep-stealers, forgers; and on many other
persons guilty of crimes no more serious than these
mentioned. The laws given in the books of Exodus
and Leviticus impose the punishment of death for
such offences as breach of the Lord's day, going to
wizards, eating the fat of a beast of sacrifice, eating
blood, approaching unto a woman "as long as she
is put apart for her uncleanness," and various kinds
of sexual outrages. In England, in 1837, the death
penalty was removed from about two hundred
crimes. The severity of punishment had evidently
been regarded as beneficial to society. The aim was
that of deterrence.

The deterrent purpose appears clearly in the prac-
tice of punishing criminals in public. It was once
the custom in England for offenders to be whipped

1 Ross, op. cit., pp. 110, 124.

2 For the examples cited, as well as for many others, see Wester-
marck, op. cit., vol. I, pp. 186-191.

AND SOCIAL CONSTRAINT 67

in the streets, and for murderers, after execution,
to be left hanging for days and weeks as an example
to deter others from capital offences; and in order
that the bodies might last longer, they were saturated
with tar. During the Middle Ages, mutilation was
a popular punishment, because such a striking ex-
ample of justice was considered to have great deter-
rent effects.1

Society punishes a good many harmful acts which
were unintentional. No bad motive lay behind
them. They were produced involuntarily, from
lack of forethought. Society inflicts suffering, not
for the sake of the past, but out of regard for the
future. It desires attention on the part of its mem-
bers in social intercourse. Carefulness has to be
exercised lest the rights of others be damaged.
Attention may be mechanically excited and sus-
tained by the fear of punishment; so it is on this
account that penalty is threatened in case of care-
lessness. Punishment is to develop attention and
thus to protect society.

Similar considerations dictate the severity with
which "criminal negligence" is in some cases pun-
ished. The severity is justified by the principle
that crime should be punished according to the im-
portance of the interest which it harms and to the
degree of terror which needs to be associated with
the crime in order to protect the interest. The
carelessness of. a locomotive engineer who overlooks
a signal and causes a fatal accident may contain no
more moral depravity than is contained in such
negligence as all of us are constantly guilty of. Mul-

1 Cf. Westermarck, op. cit., vol. I, p. 192.

68 CRIMINAL RESPONSIBILITY

titudes of actions and omissions involving a more de-
praved state of mind are not punished at all. Yet
the engineer would be pronounced guilty of man-
slaughter and would be sentenced to penal servitude.
The justification is to be found simply in the effect
of the negligence in different cases upon the rights
of others. In the case supposed, the most impor-
tant of all rights, the right to life on the part of rail-
way passengers, depends on the watchfulness of the
engineer. Failure in vigilance needs to have suffi-
cient terror associated with it in the mind of other
engineers to prevent its recurrence. The punish-
ment is just, however generally virtuous the victim
of it is, because it is necessary for the security of in-
terests, the protection of which is necessary to social
well-being.1 Similarly, in times of war, a sentinel
found negligent of duty is most severely punished,
even though no actual harm has resulted. Society
cannot afford that sentinels shall be negligent. The
punishment aims to prevent any recurrence of the
crime.

2. Arguments against the Theory

If the sole or principal object of punishment is
deterrence, why should not the law deliver its heavi-
est threats where the strongest motive is needed to
restrain? To keep a man from committing a crime
under great temptation or in a fit of passion a very
grave penalty needs to be threatened; whereas to
deter from killing one's father does not require the
threat of as severe punishment as other kinds of
murder, because filial affection operates to the same

1 Cf. Green, op. cit., vol. II, paragraph 198.

• AND SOCIAL CONSTRAINT 69

effect as the menaced consequences. The principle
of deterrence is this: The punishment should be
neither more nor less severe than is necessary for
protection from crime. But if tins rule were really-
acted upon, the penalties for some minor offences
would certainly have to be made much heavier than
they are at present; those for some serious crimes,
much lighter. In fact, it is more difficult to deter
men from petty crimes than from grave ones; — then
should penalties be severer for petty than for grave
crimes? For example, there is no class of offenders
more difficult to restrain from repeating their offences
than habitual drunkards and vagrants, whereas the
chances are slight that a man who killed another in
a fit of passionate jealousy or suspicion of adultery
would ever repeat the offence. According to the
principle that the object of punishment is deterrence
from crime, should not the law let off the murderer
with a light penalty and imprison the petty offender
for the whole of his life? '

If deterrence were the object, then where it was
impossible punishment would have to be renounced.
The absolutely hardened and incorrigible offender
would have to go scot-free instead of being the most
severely punished of all. At present, judges con-
sider a weakened capacity of self-control to be a
mitigating circumstance — as where a sunstroke has
left a man with a will-power so feeble that he pursues
any passing pleasure with little regard for conse-
quences. According to the principle of deterrence,
however, insanity, when not of such a form as to
destroy responsibility, ought to aggravate the pun-

1 Cf. Westermarck, op. cit., vol. I, pp. 82-83, 200.

70 CRIMINAL RESPONSIBILITY

ishment; for the weaker a man's will, the more
sternly does it need to be braced by the fear of
penalty.1

In agreement with the principle of deterrence it
might be argued that a theft committed by a starv-
ing man ought to be punished very severely in order
to have the strong inducement to theft offset by a
strong inducement to honesty. Instead of the hun-
ger of the thief being a reason for lightening his pun-
ishment, it is a ground for increasing it, so that the
great temptation to steal when in agonizing hunger
may be neutralized by the great terror associated
with the commission of theft under such conditions.
Now, the fact that "extenuating circumstances" are
taken into account and modify punishment shows
that this is not solely for deterrent purposes, but
represents the moral disapproval of the commu-
nity. "Extenuating circumstances" are held to les-
sen moral guilt and penal desert.

If the sole object were deterrence, then punishment
should be much harsher in the case of first and
young offenders, with whom it is most likely to be
efficacious, than with old and hardened criminals,
with whom no amount of it could be effective.

Penalty administered on the principle of deter-
rence would be completely disarmed in the case
of the penitent offender. Repentance would have
to be followed by liberation. There could be no
crime for which it would not secure immunity from
punishment.

The principle of deterrence would justify a practice
of inflicting on an unsuccessful attempt to commit

1 Cf. Kenny, op. cit., pp. 30, 53.

AND SOCIAL CONSTRAINT 71

crime as grave a punishment as on the actual crime.
The would-be criminal who has failed to accomplish
his object simply on account of mere chance —
failure of the pistol to fire, or age and weakness of
the poison — is just as dangerous to society as the
criminal who has been more successful. And just
as severe a penalty is needed to deter from attempt-
ing murder as to deter from murder. Yet society
would not consent to the execution of the man whose
pistol had missed fire, while it would demand the
execution of the same man if his brother's blood
cried from the ground for vengeance. This fact goes
to show that punishment is justified not by deter-
rence but by moral justice.

It is a generally accepted principle that punish-
ment must be graduated according to the degree of
the misconduct. A petty offence must not be visited
with grievous affliction; a grave crime must not
be met with trivial recompense. This principle is
entirely independent of the efficacy of the punish-
ment in deterrent effects. If two similar thieves
were brought before a judge, and the one were sen-
tenced to five years at hard labor while the other
escaped with a mere reprimand, the people's moral
sense would feel outraged at such a miscarriage of
justice.

If the aim were deterrence, every punishment
would have to be made as public as possible. But
this is directly contrary to the movement of his-
torical development. In earlier times, the maxi-
mum of publicity was sought; nowadays, the mini-
mum. Punishments tend more and more to be kept
from the public. It is the desire of the makers and

72 CRIMINAL RESPONSIBILITY

executors of the laws to admit the public as little
as possible into the knowledge of penal sufferings.
This tendency militates against the notion that the
object of legal chastisement is deterrence. How can
punishment be expected to have deterrent effects on
possible criminals when knowledge of it is kept from
them?

The acts which the law forbids and penalizes are
acts which are condemned by the general moral
consciousness as wrong. And it is their wrongness
which has always and in all places been regarded as
the justification of their being punished. Penal
treatment cannot mean simply that the person sub-
jected to it suffers for the sake of society. It im-
plies necessarily moral opprobrium. Unless this
moral opprobrium attaches to the pain inflicted, it
cannot be called punishment.

The theory of deterrence refers, and pretends to
refer, only to outward conduct. It has no con-
cern with the internal moral nature from which that
behavior springs. When punitive awards are de-
clared to be just in so far as they accomplish good
deterrent effects, justice is reduced to the level of
simple social expediency. It is made to depend on
its practical value to society. This implies that if
some more economical means of deterring from
crime is discovered, then punishment will be no
longer justifiable. All this amounts to saying that
the Tightness of punishment is not its ethical
justice.

A distinction between the legal and the moral
should be recognized. The legal aim of punish-
ment may be deterrence or prevention; but the

AND SOCIAL CONSTRAINT 73

moral aim must be justice. Punishment always
has been, and always will be, the result of the moral
sense of justice. It is not because certain acts have
been penalized by the state that they have been con-
sidered morally wrong; but it is because they have
been regarded as morally wrong that they have
been corrected by the state. The sense of justice
is not the result of punishment, but punishment is
the result of the sense of justice. Or, as the same
truth was tersely expressed in the epigram of Victor
Cousin, "Punishment is not just because it deters,
but it deters because it is felt to be just." *

Another fact indicating that the correct principle
is not deterrence is the generally accepted view that
punishment must not outrun the moral approval of
the community and must not be so harsh as to out-
rage the moral sentiment of justice. Society will not
tolerate the chastisement of something which it does
not condemn ; and it will not permit greater severity
than that dictated by the degree of its condemna-
tion. "Experience shows that the fate of all dispro-
portionately severe laws which make too liberal use
of punishment as a deterrent is that they come to be
little followed in practice and are finally annulled.
As Gibbon says, ' whenever an offence inspires less
horror than the punishment awarded to it, the rigor
of penal law is obliged to give way to the common
feelings of mankind.' " a Thus, taken in the large,
punitive affliction faithfully reflects the emotion of
social resentment for acts already committed. It
has strict reference to the sense of justice, and can-

1 Cousin, preface to the "Gorgias" of Plato.
* Westermarck, op. tit., vol. I, p. 199.

74 CRIMINAL RESPONSIBILITY

not be explained mainly from considerations of
determent.

Deterrence is shown to be not the end of punish-
ment by the refusal of English and American law to
treat necessity as an excuse for homicide. Penalty
is inflicted even where the fear of it could not suffice
to deter. "In the extreme case of a starving crew of
shipwrecked men, who slew and fed on one of their
number deemed least likely to survive, and in the
. . . case where the accused lightened a sinking
boat by throwing overboard a superfluous passen-
ger to save himself and the rest," punishment was
given nevertheless.1

The passionate emotion into which an entire com-
munity is thrown upon the commission of some hei-
nous crime, the eagerness with which all the people
join in the hunt for the perpetrator, the satisfac-
tion that is felt by all upon his apprehension, the de-
mand that he be summarily punished, all have their
cause, not in a vague desire for social protection,
but in the specific demand that justice be done, thus
showing that the aim is not deterrence but satis-
faction of the sense of justice.

If punishment be justified by its efficacy in de-
terring from crime and thus promoting the general
welfare, why sacrifice only the offender? His chil-
dren also are sources of danger to society. Our
knowledge of the working of the laws of heredity
makes us quite sure that the offspring of certain
parents will be a burden and harm, and that the
best thing we could do for the protection of society
would be to isolate or deport them. So far as the

1 Cf. Kenny, op. cit., p. 31.

AND SOCIAL CONSTRAINT 75

principle of deterrence is concerned, the innocence
of the children can count for nothing. Imprison-
ment or deportation would be perfectly right.1

The principle of deterrence has no intrinsic con-
nection with the infliction of suffering. It involves
no inherent desire to cause pain to the offender.
The administrator of justice, according to this the-
ory, could feel no more sympathy with the person
who suffered innocently, yet benefited society there-
by, than with the person who suffered on account
of his badness for the benefit of society.

The conclusions from the principle of deterrence
would lead us to the position that punishment should
be measured, not by the gravity of the crime, but by
the likelihood of a repetition. The son who mur-
dered his irate father, the husband who killed his
adulterous wife, the trustee who squandered the
funds intrusted to him and then relinquished his
position and all opportunity of doing so again, might
all be left in freedom, while the tramp and the pick-
pocket, who the judge knows will certainly repeat
their offences at the first chance, should be impris-
oned for life. Thus, the deterrent theory is refuted
by the considerations that punishment is given even
though there is no danger of repetition of the of-
fence, and that punishment is not given in many
instances where society is endangered. Indeed, if
the aim of punishment were to restrain all who,
through hereditary inclination to crime, habitual
carelessness and recklessness, drunkenness, mental
aberration, etc., could presumably be regarded as
dangerous, then the entire population would have

1 Cf. Westermarck, op. cit., vol. I, p. 82.

76 CRIMINAL RESPONSIBILITY

to be divided into two groups — the one to sit be-
hind bars and locks, the other to keep guard and
watch.1

How could the aim of punishment be deterrence
when it is so evident to any careful observer that
punishment has so little deterrent effect? The prac-
tice of meeting force with force and violence with
violence can only arouse the spirit of retaliation and
vindictiveness. Severity, instead of proving a de-
terrent, operates rather as an incentive to further
crime. It kindles and fans the fires of resentment.
Drahms says, "The most enlightened penologists
and jurists confess to the entire inadequacy of pun-
ishment as either a preventive or repressive meas-
ure. . . . The traditional belief that punishment is
a cure for wrong-doing is based upon a fallacious
generalization that has not the verification of ex-
perience back of it." 2 Brockway's experience at
Elmira furnished ample opportunity for observation
and study of the principle of deterrence. He said:
"The uncertainties and delays of punishment in the
actual practice of the courts, the solace to the crimi-
nal of his notoriety, and the familiarity of the public
with crimes and penalties, must considerably dimin-
ish the deterrent effect." 3

Henderson's testimony is similar. "This power
of punishment to intimidate has very narrow limits.
It is well known by students of the subject that the
danger of being caught and of serving time acts as a
stimulant to many adventurous criminals, and since

1 Cf. Wundt, op. tit., Bd. II, S. 146-147.
•Drahms, "The Criminal," pp. 340-341.

• Brockway, in "The Reformatory System in the United States,"
edited by S. J. Barrows, p. 20.

AND SOCIAL CONSTRAINT 77

most of them are essentially gamblers, they regard
the chance of being detected and convicted among
the risks of the game which they are playing. The
vital connection between gambling and crime is well
established, and it has great significance in estimat-
ing the real value of the deterrent agencies of. society.
The criminal is also characterized by narrow views
of life, by want of foresight, and certain groups of
them, by slavery to passion. These characteristics
explain the small deterrent influence of our penal
machinery upon the criminal class. At any rate,
most of the sentences are short and have no deter-
rent effect upon a vast number of very degraded and
even dangerous men." l

The inefficacy of punishment as a deterrent has
been conclusively proved by the work of criminal
anthropologists and sociologists. If the criminal
population were composed of ordinary men, afflic-
tive penalties might constitute an effective check on
the tendency to crime. But it is not composed of
ordinary men. The great army of wrongdoers who
are passing in a ceaseless stream through our prisons,
penitentiaries, and penal servitude establishments
is not made up of the same elements as the law-
abiding sections of the community. Vast numbers
of the criminal population live under abnormal bio-
logical and social conditions, which act upon the
offender either independently or, as is more often
the case, in combination, and make him what he is.
Penal laws are framed and administered on the hy-
pothesis that the criminal lives under the same set

'Henderson, "Ethical Problems of Prison Science," in Interna'
tional Journal of Ethics, April, 1910, vol. XX, p. 284.

78 CRIMINAL RESPONSIBILITY

of conditions as an ordinary man, that all offenders
are alike and are affected in exactly the same way
and to the same extent by penal discipline. The
result is a continuous growth of the recidivist class;
a failure of penal law and penal administration to
protect society; a steady increase of expenditure in
connection with the repression of crime.1

Ferri gives a very explicit denial of the deterrent
value of punishment. "The penalties hitherto re-
garded, save for a few platonic declarations, as the
best remedies for crime, are less effectual than they
are supposed to be. For crimes and offences increase
and diminish by a combination of other causes, which
are far from being identical with the punishments
lightly written out by legislators and awarded by
judges. History affords us various impressive ex-
amples. . . . Even apart from statistics we can
satisfy ourselves that crimes and punishments belong
to two different spheres; but when statistics support
the teaching of history, no doubt can remain as to
the very slight (I had almost said the absence of any)
deterrent effect of punishments upon crime." 2

The theory of deterrence displays an ignorance of
the character of the bom criminal. This offender
lacks foresight, and will not usually measure the
gains of crime with the ills of punishment in order
to determine whether it is worth while to commit
crime. Furthermore, powerful forces in the organ-
ism of the congenital wrongdoer lead him to mis-
deeds regardless of whether or not he is conscious

1 Cf. Morrison, in introduction to Lombroso's "Female Offender,"
pp. viii, ix, xviii.

2 Ferri, "Criminal Sociology," pp. 82, 84.

AND SOCIAL CONSTRAINT 79

of the consequences, and minimize considerably the
deterrent influence of punishment on him. Upon
other classes of criminals, intimidation by punish-
ment is also slight. An evil that is so uncertain and
so distant does not often serve to prevent a vicious
man from indulging his propensities, especially if
his motives are violent and sudden. The criminal
of passion is the victim of an "explosion" that is
subversive of reason. The professional criminal cal-
culates the possibilities of escape, and deliberately
plans to run the risk of having to endure the penalty
for his crime. These facts indicate how slight is the
deterrent value of punishment.

If society's aim in punishing its criminals had
been that of deterrence, it would long ago have dis-
covered that punishment cannot accomplish that
aim and ought to be abandoned or, at any rate, pro-
foundly modified. Such facts as have just been pre-
sented have been known for a long time, but they
have caused very little change in penal procedure.

Nearly all the champions of the deterrent theory
make the good effects apply to other persons besides
the culprit himself. They maintain that punitive
suffering should be administered in order to restrain
those who might be inclined to commit crime.
They believe that the chastisement of one wrong-
doer acts as a deterrent upon would-be criminals.
Now, before discussing the injustice of punishing one
person in order to influence others, it is worth while
to call attention to the fact that the belief that cor-
rection of one offender is efficacious in checking
others has very slight foundation in practical ex-
perience. As has just been shown, penal affliction

80 CRIMINAL RESPONSIBILITY

does not even restrain the victim himself. The
steady growth of the recidivist class shows that there
is something fundamentally ineffective in the system
of punishment. Almost two-thirds of our prison
population is composed of recidivists. Many of
these have been subjected to penalty a great num-
ber of times, but without avail toward stopping
their crimes. Now, if punishment has such slight de-
terrent influence on the persons experiencing it, is
it not absurd to think that it will have great efficacy
on those who are not at all affected by it? It is
more reasonable to suppose that if it has so little
preventive effect on the culprit undergoing the suf-
fering it will have practically none on those who are
not at all touched by it.

Besides this matter of practical inefficacy, it may
be further argued that it is essentially unjust to pun-
ish one person for the sake of influencing the be-
havior of others. The criminal has certain rights
which cannot be disregarded. His personality and
his future must be taken into account. He cannot
be used merely as a means. Society is itself guilty
of a crime if it punishes any one who does not de-
serve it on his own account, that is, solely out of
regard for his own wrong-doing. And it is also
criminal if it adds one whit to his suffering beyond
the requirements of his own just desert, whether it
be added for the sake of good effect on others or
for any other reason.

This principle of punishment for restraining in-
fluence on possible criminals often leads to injus-
tice and gross brutality. A crime has been com-
mitted — let us say that a negro has raped a white

AND SOCIAL CONSTRAINT 81

woman — people think that a negro must be
lynched in order to prevent other outrages. If the
guilty one cannot be found, there is grave danger
that some other one will be sacrificed for the sake
of the "good deterrent effects." Seignobos, in his
" Political History of Europe Since 1814," relates
an incident in French history which shows the perni-
cious extent to which the principle of deterrence may
be carried. "After the discovery of the Republican
plot of 1853, and three attempts to assassinate the
emperor, the administration obtained the passage
of the general security act (1858), which 'gave
government the power to detain, exile, or transport,
without trial, any person previously condemned for
political offences, and to imprison or exile any per-
son so condemned in the future.' Espinasse, a
general, well-known for his share in the coup d'etat,
was appointed minister of the interior to apply this
law. He sent an order to each prefect to arrest
a certain number of persons, using his own choice in
the selection. According to Blanchard this number
varied from 20 to 41; it was 'proportioned to the
general spirit of the department.' Each prefect in-
terpreted the order in his own way — some limiting
themselves to men condemned at the time of the
Republic, others taking those who seemed to them
dangerous, chiefly working-men, lawyers, and doctors.
The object was simply to intimidate the people." ■

If punishment were made just by its usefulness
to society in deterring from crime, the punishment
of innocent persons would often be justified. Guyau
regarded this argument as impotent. He quoted

1 Seignobos, "Political History of Europe Since 1814," p. 176.

82 CRIMINAL RESPONSIBILITY

Victor Cousin's statement, "Punishment in striking
the innocent might produce as much or more terror
and be as preventive," and then proceeded to criti-
cise it adversely. He said, "The objection is infan-
tile. Take an example. Society wishes to prevent
incendiary fires — to do this it arrests and punishes
people who have never been guilty of incendiarism
— how could such a course exercise deterrent in-
fluence? For punishment to prevent crime, it must
punish crime and not its opposite. It is absurd to
say, We wish to frighten the guilty, let us punish the
innocent." * Did not Guyau miss the point? His
argument concerns the deterrent utility of the prac-
tice of punishing the innocent; it does not apply to
the moral justification of such a course provided it
were useful. It has force against the efficacy of the
practice, not against the justice of the principle.
But by hypothesis the punishment of the innocent
is regarded as efficacious. Then, it is claimed, the
principle would justify such a procedure. The courts
would be justified in inflicting penal suffering upon
an innocent person provided he was generally re-
garded as guilty, and his punishment would exercise
good deterrent effects upon would-be criminals.

Acceptance of the theory that the criminal is
caused to undergo pain solely for the sake of the
general good leads logically and inevitably to accept-
ance of the principle that any one whosoever may be
made to suffer without his consent, and indeed against
his will, for the sake of more important or compre-
hensive interests; that, for instance, the death of
one man may be justly demanded where it is be-

1 Guyau, op. cit., p. 362.

AND SOCIAL CONSTRAINT 83

yond question the only possible means of saving the
lives of many. In order to test their students and
find out how many of those who professed to find
in deterrence the rationale of punishment really
accepted the principle in its purity, Sharp and
Otto submitted to them the following example,1
which is reproduced here to test the reader's reac-
tion on the same problem. "Long ago, when Green
Bay [Wisconsin], was a little community of two or
three hundred people, situated in the midst of vast
forests, an Indian chief, accompanied by a formidable
band of warriors, one day suddenly made his ap-
pearance before the stockade and demanded the sur-
render of a certain one of its citizens. This citizen,
the chief believed, on what he regarded as the best
of evidence, had, a few days before this, killed a
member of his tribe. The murderer, he accordingly
declared, must be turned over to him for punish-
ment. The citizens, however, pointed out to the
chief, — what was the truth, — that the man in
question had been busy with a piece of work for the
past two weeks, and had not left the settlement in
all that time, so that it was impossible he should be
the guilty person. The chief, however, believed they
were all lying and threatened that he would attack
the town and kill every soul in it if they did not com-
ply with his demand inside of twenty-four hours.
The whites knew that the chief was a man of his
word; that, accordingly, if he promised to with-
draw and molest them no further upon the surrender

1 Sharp and Otto, "A Study of the Popular Attitude Towards
Retributive Punishment," in International Journal of Ethics, April,
1910, vol. XX, pp. 352-353.

84 CRIMINAL RESPONSIBILITY

of their fellow-citizen, he would do so; that, in like
manner, if he threatened an attack in case of their
refusal, he would certainly carry out his threat.
In deliberating over the matter, they concluded that
the chances were good that they could hold out until
help could be obtained from a distance. But they
recognized at the same time that, in the event of an
attack, a large loss of life was inevitable, amounting,
perhaps, to fifty or more of their number. On the
other hand, they also recognized that to give up
their fellow-citizen meant for him certain death.
The man in question was unwilling to surrender
himself. What ought they to do? . . . It is to be
understood that the surrender of the citizen would
not be imprudent as creating a dangerous precedent,
or exhibiting a real or apparent weakness of which
advantage might be taken. . . . The conditions,
then, being as described, how many of our champ-
ions of deterrence will justify the sacrifice of the one
for the many in the case before us?"

The theory of deterrence rests on the view that
punishment exists, not on account of the actual
criminals, but because of possible wrongdoers. The
murderer is executed and the thief imprisoned in
order to set up an example. Now, aside from the
fact that this result, as statistics teach, is not usually
accomplished, since with the cruelty and publicity
of executions and punishments the number and
gravity of crimes increase rather than diminish, the
object is in and of itself irrational. It is both unjust
and unreasonable to administer penalty in order to
produce an effect, not on the victim, but on some
third person. The basis of such an absurd view of

AND SOCIAL CONSTRAINT 85

punishment's object lies in confusing the general
existence of the legal and penal order with a par-
ticular instance of its application. The general
legislative and punitive order exists for the good of
society, or because it is the will of the individuals
that it should be. Each individual wills that his
will be subordinate to the general or collective will;
therefore the legal and penal order exists. It is a
confusion to think that it exists in order to frighten
any would-be damage-doer. If he does not will to
serve the general interest, he cannot be frightened
into willing it. The fear of punishment will not be
able to restrain him from crime. The criminal,
like any other man, believes what he hopes, and so
reckons on escaping detection and punishment.1

1 Cf. Wundt, "Ethik," Bd. II, S. 151-152.

CHAPTER IV
PUNISHMENT FOR REFORMATION :
1. Explanation and Defence of Theory

According to this view, the supreme aim of pun-
ishment is the reformation of criminals. Penalty is
designed to effect the betterment and cure of those
who come under its operation. Society is not re-
stricted to justice; it should engage also in benefi-
cence. It is to administer legal correction out of
benevolent regard for the good of the criminial him-
self. Justice is not the only word nor the final
word. Fraternity or universal brotherhood is its
completion. Love is the complement of justice.

It is worthy of remark that in the conception of
punishment held by Plato and Aristotle the element
of retribution was almost entirely absent. They
regarded the proper object of punitive treatment as
either deterrence or reformation, and assigned the
greater importance to the latter. They thought of
penal affliction as a moral medicine to purge the
soul of wickedness. And ever since the time of
Plato and Aristotle the doctrine of reformation has
been emphasized by moralists who could not rest
content with the idea that the state, in punishing,
was concerned merely with the infliction of so much
suffering, and had no responsibility in regard to the
moral effect of the punishment on the criminal.

86

CRIMINAL RESPONSIBILITY 87

Are we right in hating the criminal? He is born
into crime, predetermined and necessitated to wrong.
He is already a prisoner — held in chains and
weights. If these were removed, he would rise to
higher things and be lovable as any human being is
lovable. If we could descend into the heart of the
person seeming to merit hatred we should discover
good human possibilities held in fetters. Our hatred
would change to pity, because, instead of finding
there a will or character that was bad from freedom
of choice, we should behold one enslaved to evil and
yet capable and desirous of the higher life. Must
we not love such? Is it not such that merit most
especially our pity and love?

Crime is the result of the operation of the laws of
heredity and environment. The criminal is born a
criminal or is made one. He is diseased, and needs
to be cured, not punished. If crime is a pathologi-
cal phenomenon, a form of insanity, an inherited or
acquired degeneracy, then the proper treatment of
the criminal is that which seeks his cure rather than
his punishment. Hospitals, asylums, and reforma-
tories must take the place of prisons. The hard,
blind desire for justice and the unrelenting and un-
reasonable spirit of vindictiveness must yield to a
gentler and wiser humanity. Society is now so se-
curely organized that it can afford to be not merely
just but generous as well.1 The human individual,
even though a criminal, must not be treated as a
thing — to be destroyed without consideration of
personality. He must be convinced of the righteous-
ness of his punishment; his slumbering conscience

1 Cf. Seth, op. cit., pp. 314-315.

88 CRIMINAL RESPONSIBILITY

must be awakened. If punishment does not aim at
this, it is not moral. To be moral, it must not sim-
ply restrain the wrongdoer, by external force, from
a particular act on a particular occasion, but must
attempt to extirpate his depraved instincts and to
convert his evil nature. It is not even truly de-
terrent unless it is reformative, unless it remoulds
the character of the criminal, unless it causes him
to see the wrongness of his ways, to repent, and to
lead a better life.

Punishment is thus not designed to be an evil.
The criminal's estimation of it as an evil is due to
the fact that he does not recognize it in its real char-
acter of a blessing. His ignorance of his true inter-
est is like that of the sick man when he detests the
medicine, or that of the school-boy when he com-
plains at being forced to go to school.

The philosophy on which the principle of reforma-
tion rests may be sketched as follows. Punishment
is shown by experience to be one of the most effect-
ual ways — and in some cases the only effectual
way — of producing the amendment of offenders.
It does not simply induce them to abstain from
wrongful acts for fear of the consequences, but
actually makes them better. There is a higher self,
as well as a lower self, in every person; and if the
lower self is kept down by the terror of punishment,
the higher self is able to assert itself. The conten-
tion that mere pain cannot produce moral effects is
seen to be absurd When recognized to involve the
assertion that no external conditions have any moral
effect upon character. It is a matter of common
experience that great moral changes in men's char-

AND SOCIAL CONSTRAINT 89

acters are often brought about by misfortune, pov-
erty, calamity, bereavement, disgrace. The result
is sometimes direct, sometimes indirect, through the
awakening of religious emotions. In either case,
however, all that the suffering does is to create a
state of mind favorable to the action of higher mo-
tives and considerations, or to remove conditions
unfavorable to their action. Punishment for refor-
mation aims at an artificial creation of circum-
stances conducive to moral improvement, and has
an advantage over ordinary misfortune in that it is
seen to be the consequence of wrong-doing.1

The reforming influence of good environment must
not be underrated. Every man has within him both
good and evil tendencies. Many men are criminal
because their surroundings have been such as to
repress the development of the good tendencies and
to favor the development of the evil. To transplant
such natures into good environments may lead to
" reformation " in their characters and habits. Of
course heredity exerts a strong influence. The child
of a criminal man and a woman of a low order of
mental and moral development naturally partakes
of the characteristics of both parents and has vicious
inclinations. If he should grow up in the environ-
ment of a home presided over by a man and woman
of this type, he would probably follow in the steps
of the parents. On the other hand, however, if he
should be lifted out of it, surroundings of culture
and cleanliness, both physical and moral, would
probably more than balance the evil heredity and
make of the child an honest man. The reformatory

1 Cf. Rashdall, op. di., pp. 22, 27, 28.

90 CRIMINAL RESPONSIBILITY

methods in our prisons are simply attempts on the
part of the law to change the whole trend of the
criminal's life by a temporary environment supplied
by the state. If heredity were the major cause of
the criminal's obliquity, surely prison or reformatory
discipline could do little to make him a better citizen.
But if criminality be an acquired rather than a nat-
ural characteristic, due more to environment than
to heredity, then attempts at reformation may be
efficacious.1

E. C. Wines, in the resolution which he drew up
for the International Congress on Penitentiary Dis-
cipline, held at Cincinnati in 1870, said: "The treat-
ment of criminals by society is for the protection
of society. But since such treatment is directed to
the criminal rather than to the crime, its great object
should be his moral regeneration. Hence the su-
preme aim of prison discipline is the reformation
of criminals, not the infliction of vindictive suffer-
ing." 3

F. H. Wines also should be reckoned among the
champions of the supremacy of the reformative aim.
He regards the establishment of reformatory insti-
tutions as "the landmark which divides two civ-
ilizations or two historical epochs." 3 "Subjugation
was the old idea; conversion is the new." * "The
criminal law is also, when it is rational and equita-
ble, and is administered with intelligence and human-
ity, designed and adapted to effect the amendment
of those subjected to its afflictive penalties. The

• Cf. Thayer, "What May We Do With Our Criminals?" in The
Survey, July 9, 1910, p. 567.

"Henderson, ed., "Prison Reform," p. 39.

3 F. H. Wines, op. cit., p. 121. * Ibid., p. 208.

AND SOCIAL CONSTRAINT 91

model of human government is found in the divine
order, in which we are chastened for our profit."1
"The theory of social protection is hardly broad
enough to cover every case that may arise in the
administration of the criminal law. It ignores too
much the moral aspects of crime, and has too little
analogy to the divine government, which always has
in view the recovery of the prodigal son or daugh-
ter, in an unselfish spirit, as taught in the Christian
religion by the sacrifice of the Son of God for the
redemption of the race." 2

Brockway was one of the stanchest supporters of
the principle of reformation. "The reformatory
prison system," according to him, "... is ranged
under a motto which reverses that of the classical
school of penologists, its motto being ' Prevention
the principle; punishment the incident.' It seeks
the public protection through the reformation of
criminals, and counts it of small moment whether the
prisoner undergoing the reformative process is pleased
or displeased thereat. It is held by the advocates of
this system that all the ends sought by punishment
for crimes, by all the schools, are best attained when
protection by reformation constitutes the whole pur-
pose and method of prison treatment; and that by
this means there is incidentally reached the nearest
possible realization of justice, the equitable adjust-
ment of pain to sin. The real reformation demanded
by this reformatory system is necessarily a rigorous
experience for prisoners, so irksome that they would
scarcely choose it; yet because the purpose of it is
to accomplish a remedial result, it can scarcely be

1 Ibid., p. 288. » Ibid., p. 290.

92 CRIMINAL RESPONSIBILITY

considered, either by the subject of such experiences
or by the observer, as an unjust penalty." ■

Boies also speaks in the highest terms of the prin-
ciple of reformation. "The substitution of the re-
formative treatment of criminality in the place of
the pre-Christian codes of the lex talionis is a logical
development of the law of redemption by conversion
to righteousness, taught by the precepts and illus-
trated in the life of Christ. It relegates the pun-
ishment of sin, wickedness, vice, and immorality to
God, to whom it belongs, who always and every-
where proclaims, by word and acts which cannot be
misunderstood, 'Vengeance is mine, I will repay';
and restricts the functions of human laws to the
protection of humanity from wrong and harm by
the confinement of evil-doers until their disposition
to crime is removed. It replaces vindictive cruelty
toward criminals with humane efforts to cure the
disease which causes criminality. . . . The reforma-
tion of criminals is not alone a Christian theory
which cannot be fully verified in human life, but is
now a positive and actual science, based upon facts
and principles as well established as any human
therapeutics. Indeed, the scientific observations of
criminologists, and the recorded results of the ex-
periments of the last twenty-five years, particularly
those of Mr. Brockway at Elmira, have not only
demonstrated the reliability of these fundamental
facts and principles, but they have actually consti-
tuted the science of Penology. . . . The uncontrolla-
bility of the criminal class is due to an unnatural or

1 Brockway, in "The Reformatory System in the United States,"
edited by S. J. Barrows, p. 22.

AND SOCIAL CONSTRAINT 93

abnormal condition of the personal character of its
members, which is properly designated a disease;
just as insanity, inebriety, prostitution, idiocy, and
epilepsy are diseased conditions of the human system.
. . . The prognosis of the disease of criminality is
quite as hopeful as that of any of the serious dis-
eases which afflict humanity. Information secured
in 1899 concerning 274,763 reported cases of small-
pox, typhoid, diphtheria, and croup, showed a fatal-
ity, in small-pox of 25.8 per cent., in typhoid fever
of 19 per cent., and in diphtheria and croup of 22.7
per cent., during the years 1894 to 1898, inclusive,
as compared with the 16.6 per cent., of failures in
the reformation of criminals recorded as the actual
results of the twenty-five years' practice of Mr.
Brockway at Elmira. This percentage of failures,
moreover, was the result of a system of Penology
which limited the time of treatment to a specific
maximum of duration previously fixed by law as
adapted to a single symptom, the crime, instead of
more rationally committing its determination to the
physician in charge. Such a system necessarily
caused the discharge of many of the most difficult
and obdurate cases uncured, thus reducing the pos-
sible average of recoveries. It may, then, be regarded
as stientificatty proved that the disease of criminality
can be cured.1* ■

! Boies, ■ Science of Penology," pp. 158-160.

94 CRIMINAL RESPONSIBILITY

2. Arguments against the Theory

The reformationist tells us that the criminal is a
diseased person, needing treatment and cure, not
punishment. But this analogy is an attempt to
delude us by obscuring the main point at issue. Its
inadequacy is disclosed by the touchstone, What is
the chief concern? In the treatment of sickness,
even the comparatively small amount of contagious
sickness, the main object of consideration is the wel-
fare of the sick person; but in the treatment of
crime, it is the welfare of society. First of all, soci-
ety must be protected and its resentment appeased.

The criminal, whether rightly regarded as "sick"
or not, will not submit to treatment for "cure" and
reformation. He insists that he is not a thing to be
moulded according to your ideas of what change
ought to be effected. He is a person with his own
will, aims, and ideas. His will, his character, is his
own, and is inseparable, inalienable. He will not
give it up to society to have it operated on and to
have part of it removed. Society is absolutely pow-
erless over against the individual's will. It may
force external behavior, but it cannot force changes
in character.

Before punishment could be "morally" efficacious,
before it could ameliorate the sufferer's spiritual
nature, it would have to be affirmed by him as a just
desert and desired as a good. It would have to be
administered by himself. It would have to follow
in accordance with his own internal ideal of what is
right and just. Unless he regarded the inflicted suf-
fering as merited, you might overwhelm him with

AND SOCIAL CONSTRAINT 95

it without any efficacious moral results. He would
consider it an accidental misfortune due to a mis-
calculation in his reckoning and plans. It could not
possibly serve to improve his character. Thus pun-
ishment is impotent over against the inner nature.
The man must himself will the punishment as a
"moral" medicine and must himself will the good
which it is supposed to bring him. But he could not
have such a will unless his character was already
amended; and then the punishment would be un-
necessary, unfitting, unjust. Thus the aim at refor-
mation is completely disarmed. Penal affliction
could have no moral effect on the culprit unless his
character were already moral. But if his character
were already moral, "reformation" would not be
needed and punishment for such an end would be
unjust.

The state has no concern in trying to estimate
the intrinsic worth of an individual's character. The
object of its consideration is not internal virtue and
vice, but external acts and behavior. Its concern
is with actions, not with motives; with conduct, not
with character. It regards not religious sin and
moral evil, but social wrong and crime.

The ordinary man, who is not accustomed to ab-
stractions of thought, finds it difficult to make the
discrimination between moral virtue and vice on the
one hand and social beneficence and injury on the
other hand. But this abstract distinction needs to
be made in this connection in order to ascertain the
object of punishment. Let us conceive abstractly
a man whose character was bad but whose acts were
in harmony with the needs and demands of society.

96 CRIMINAL RESPONSIBILITY

Of course such a case is an abstraction. In reality,
from an evil character there follow evil deeds. But
to discover the real object in punishment we must
consider these elements separately. Could society
punish such a man? No. It can never punish a
man because his character is morally bad and in
order to make it better, but solely because his acts
are socially harmful and in order to protect itself.

There are several reasons why it is difficult to
realize that society has not the right to try to com-
pel moral goodness. Men instinctively feel that vice
unpunished is a monstrosity in the universe, a re-
proach to the ruler of the moral world; so they are
inclined to help the moral governor give the proper
punishment.

Furthermore, man has a natural impulse to correct
moral deformity just as he has a natural impulse
to correct physical deformity. Moral ugliness ex-
cites his repulsion as much as, or even more than,
physical ugliness; and he instinctively turns away
from it or tries to remedy it. He cannot rest in-
different and inactive in the presence of the incorrect,
the inappropriate, the wrong, the bad. He wants to
do something to set the matter right. He does not
realize that there are some things which he would
better not touch. Those who first found in excava-
tions in Italy and Greece a Venus with an arm or a
leg missing experienced this natural impulse to re-
pair the damage and attempted to supply what was
lacking. To-day, more timid, we leave these works
of art superbly mutilated — we prefer to let our
impulses suffer rather than profane and desecrate.
Conditions are the same when we find ourselves in

AND SOCIAL CONSTRAINT 97

the presence of something morally defective. There
is a mighty impulse to try to correct it. But how
can immorality be remedied from the outside? Man
lays hold of punishment, an instrument ready-made
and at hand. But the endeavor is futile. Only the
original makers of those marble statues could repair
them; and only the original possessors of these in-
dividual wills can reform them. We must turn
our expectations toward the future. Instead of
trying to repair the irreparable, let us try to make
our works that are to follow us as good and beautiful
as possible.1

We have been looking at the matter with particular
regard to the person to be reformed. Let us now
look at it a moment with special reference to the
reformers. What right have the persons administer-
ing the punishment to regard themselves as properly
constituted to judge of moral good and evil and to
attempt to make over the bad? It would be inter-
esting to consider this question first in connection
with Mill's philosophy. Mill was the great cham-
pion of the supremacy of the doctrine of social utility;
so it is surprising to find him professing to be an
adherent of the doctrine of punishment for reforma-
tion. He said: "There are two ends which, on the
Necessitarian theory, are sufficient to justify pun-
ishment: the benefit of the offender himself, and the
protection of others. The first justifies it, because
to benefit a person cannot be to do him an injury.
To punish him for his own good, provided the in-
flictor has any proper title to constitute himself a
judge, is no more unjust than to administer medicine.

1 Cf. Guyau, op. cit.} pp. 201, 202.

98 CRIMINAL RESPONSIBILITY

As far, indeed, as respects the criminal himself, the
theory of punishment is, that by counterbalancing
the influence of present temptations, or acquired bad
habits, it restores the mind to that normal preponder-
ance of the love of right, which many moralists and
theologians consider to constitute the true definition
of our freedom." ' If what makes punishment just
is the profit which the punished person himself de-
rives from it, would not this justify often the acts of
the offender himself? It may well be that the suf-
fering which the criminal causes his victims may
issue in good to them. Adversity is often the cause
of moral benefit ; hence, the criminal in plunging his
victims into adversity may be leading them to a
spiritual good. If so, according to this principle
that the infliction of suffering is justified by the
moral profit which the afflicted person derives from
it, the criminal must be declared free from guilt or
blame.2

When the criminal is told that suffering is to be
inflicted on him for his good, he may revolt, he may
see fit to dispute the widsom of the infliction, and
may regard it as unjust. He may rebel against such
a sanction even though forced to submit to it. Mill
said that to punish a man for his own good is no
more unjust than to administer medicine. Now,
what is this supposed good, this pretended benefit,
which the punished person is to derive from his pun-
ishment of, say, ten years in prison? According to
Mill, "by counterbalancing the influence of present
temptations, or acquired bad habits, punishment re-

1 Mill, op. tit., p. 592.

a Cf. Guyau, "La morale anglaise contemporaine," p. 358.

AND SOCIAL CONSTRAINT 99

stores the mind to that normal preponderance of the
love of right, which many moralists and theologians
consider to constitute the true definition of our free-
dom." The profit which the criminal may expect,
then, is the "normal preponderance of the love of
right." Who can guarantee that "preponderance
of the love of right" is something normal? And
what is meant by "love of right"? What is the
right? According to Utilitarianism, it is the useful.
And what is the useful? It is that which produces
pleasure. And what is pleasure? According to
Utilitarianism, each man can know and can desire,
in reality, only his own. Then why punish the
criminal? He loves his own pleasure. You love
yours. Where is there any difference? Plato might
pronounce the criminal "sick," in comparison with
the ideal man, the pattern of perfect goodness; but
the Utilitarian cannot declare him "sick" other
than as the Utilitarian himself is sick and as all other
men are sick ; that is to say, all are unable to will the
least bit of real disinterestedness. Of this malady,
the Utilitarian cannot hope to cure the culprit, or
any one else, either by punishment or by any other
means. The Utilitarian cannot talk to the offender
about "freedom." He recognizes that the wrong-
doer, like all other men, is a slave to motives, im-
pulses, desires, interests, and that he seeks, and can
seek, simply his own good. Now no one can be bad
solely in and by himself. He can be bad only in
relation to some one else. Therefore it is impossi-
ble to legitimize a sanction which considers merely
the individual himself. You must renounce punish-
ment if you are to administer it solely for the cul-

100 CRIMINAL RESPONSIBILITY

prit's own good. Just because he has caused you
suffering, you cannot declare him sick and in need
of remedial treatment with suffering. He has in-
deed caused harm to you. But do not pretend that
you are going to treat him with medicine for recovery
from a malady. Deal with him as violently as you
will, but do not make a pretext of his moral health,
and do not try to persuade him that the sheriff or
executioner is a physician. If the criminal asks,
"Why do you put me to death, ?" do not tell him the
lie, "For your own good." The criminal's interest
is not, and never will be, punishment; and punish-
ment has not for its object, and never will have for
its object, the good of the criminal.1

No one who approves of capital punishment can
legitimately profess to be an adherent of the prin-
ciple of reformation. If the supreme aim of punitive
treatment is the amendment of the person punished,
then that treatment cannot go to such an extreme
as to cut off forever all chance of amendment. This
fact seems so clear that it comes as a great surprise
to find Alexander maintaining that the death pen-
alty is administered to make the victim better. He
says: "In some cases the wrongdoer's mind is so
perverted that only loss of his life (at least in the
judgment of society) will suffice. Here, too, para-
doxical as it may seem, though perhaps the chief
object of our punishment is the indirect one of better-
ing others, we punish with death in order to make
him a good man and to bring him within the ideal
of society. It is true that we give him no chance of
showing his reformation by a further usefulness, but

1 Cf. Guyau, op. cit., pp. 358-361.

AND SOCIAL CONSTRAINT 101

the penalty of death is thought necessary to bring
home to him the enormity of his guilt." ■ This
notion that even the death penalty is administered
in order to reform the culprit is almost the height of
absurdity. It shows the extreme lengths to which
enthusiasm may carry one. There is a real dilemma
here. If capital punishment is retained, the prin-
ciple of reformation must be rejected; if the prin-
ciple of reformation is accepted, capital punishment
must be abandoned. The attempt to reconcile the
two is futile and absurd.

Penal affliction does not cause the victim to respect
it and to derive from it a moral benefit. On the
contrary, it simply leads him to fear it, and to exert
himself to elude it. Its efficacy can never be any-
thing more than external. So penalty cannot be re-
garded as the instrument of morality; it simply
causes one to fear and avoid it, but not the action
to which it is attached.

If the aim of punishment be reformation, then the
degree of amelioration that is accomplished in the
process is made the basis of the judgment as to how
long the convict shall be kept imprisoned, or when
he shall be set at liberty. That not even the keenest
judge of human nature in the world could tell with
any measure of probability whether or not the pris-
oner's decision made under the conditions of prison
life would be really kept under conditions of free-
dom, we need not emphasize. But it is certain that
genuine repentance takes place oftener among the
great criminals than among the petty ones. It fre-
quently happens that the perpetrator of some very

1 Alexander, op. cit., p. 331.

102 CRIMINAL RESPONSIBILITY

serious crime sincerely and bitterly repents, and
would never commit another if released. According
to the principle of reformation, such a man would
have to be set free at once. On the other hand,
as is well known, there is no more obdurate and
incorrigible set of offenders than petty thieves,
habitual vagrants, and drunkards. Hence, the es-
tablishment of the principle of reformation would
lead to the barbarous result that pistol fiends, poison
mixers, and murderers would, after a short and ef-
fective imprisonment, enjoy again their freedom,
while petty offenders like beggars and tramps would
have to be maintained for life at the public expense.
An absurd result like this is fatal to the supposition
that punishment is merely a means to reformation. '

We all demand that the penalty shall not be out
of proportion to the gravity of the crime committed.
What ardent reformationist, even, would maintain
that an offender, convicted of having violated the
game-laws, unrepentant, asserting that regardless of
game-laws to the contrary he proposed to continue
to shoot birds at any time or season he found them
damaging his trees, ought to be sentenced to hard
labor in the stone quarries until reformed, while a
repentant and reformed murderer might be let off
with a fine of fifty dollars or a short term in jail?
The generally accepted principle that punishment
must not exceed the limits set by moral disapproval
of the damage done argues against acceptance of the
aim at reformation.

The doctrine of reformation would lead to much

1 Cf. Wundt, op. cit., Bd. II, S. 150, 151; Morrison, "Crime and
its Causes," pp. 202, 203.

AND SOCIAL CONSTRAINT 103

severer punishment in a hopeful case than in a hope-
less one, regardless of whether the offence of the first
had been trivial in comparison with that of the
second. But we should all be shocked if a slight
offender were subjected to intense suffering while a
great incorrigible criminal were let off easy. The
reformationist shows an inconsistency in his doc-
trines in the case of the incorrigible offender. He
would no more than any one else advocate the idea
that the incorrigible criminal ought not to receive
any punishment whatever. But if reformation were
the sole object of penal treatment, the person who
could not be reformed would have to be exempt
from it. If not the slightest hope of reforming the
culprit could be entertained, there would be no rea-
son for chastising him at all. Incorrigibility would
excuse from punishment.

If punishment is viewed as intended for the moral
amendment of the criminal, can it be proved to be
the best way of improving him? Would not a gen-
tler education accomplish better results? Punish-
ment renders hard, insensible, vengeful, and stupid.

The reformationist would have the means of pun-
ishment accomplish moral instruction and cause the
criminal to become conscious of the immorality of
his life. So long as such an undertaking be a side-
issue, a mere accompaniment of the main process,
little objection need be raised. If the criminal ac-
cepts the chastisement as merited by him, and is re-
formed, this is an agreeable and satisfactory result.
Society may rejoice at it, but cannot make it the chief
object. When the whole conception of punishment
is embraced in the idea of reformation, then punish-

104 CRIMINAL RESPONSIBILITY

ment ceases to be an evil, and thereby loses much
even of the moral effect which is hoped for from it.
The deterrent principle, as truly as the reformative,
would educate the offender. It aims to punish, and
through punishment to instruct, and through instruc-
tion to restrain from further crime. The emphasis,
however, is on deterrence through punishment, that
is, through the infliction of suffering, an evil. The
reformationist would improve instead of punish.
He places the emphasis on education; and through
education would bring to the culprit a good. Now
the advocate of the principle of deterrence not only
doubts the deterrent efficacy of the principle of
reformation, but regards it as a relinquishment of a
fundamental part of his idea, since, if the end is in-
struction, punishment as means may fall away, and
one half of the deterrent aim be lost. For this prin-
ciple would dissuade through punishment. A re-
straint accomplished by means of hypnotism or
through drugs, baths, and massage, would not be
called punishment. Similarly, when a man is in-
duced to forswear crime through the ministrations
of a prison chaplain, through education, through a
book from the prison library, he is not reformed by
punishment at all. Deterrent punishment means
necessarily the infliction of evil, and hopes through
the infliction of this evil to prevent further crime.
The reformationist would substitute in place of penal
correction attendance upon school, instruction in
music and gymnastics, mastery of a trade, and ac-
ceptance of religion. The advocate of the deterrent
motive would also have these things, but only as an
accompaniment of the punitive process, not instead

AND SOCIAL CONSTRAINT 105

of it. There is a fundamental difference of emphasis
in the two theories, due to the essential difference in
purpose. The principal aim, as conceived by the
one theory, is the protection of society through pun-
ishment; while according to the other, it is the
amendment and good of the person punished. Pun-
ishment, in the judgment of the one, is to be an evil;
while according to the other, it is to be a good. But
if prison is to be primarily an educational institution,
and admission to it a good for the person admitted,
it is a pity that entrance can be gained only by com-
mitting a crime.

Grave objections to the theory of reformation
may be raised on the ground that trial has shown it
to be barren of results. Drahms says that it is be-
coming constantly more apparent to all students
along these lines that punishment has little reforma-
tive effect. The principle which encounters force
with force meets with but slight moral responsive-
ness in the subject, but serves rather to arouse the
latent retaliatory and vindictive spirit that contains
little of regenerative power. Punishment does not
reach the springs of human motives, or in any sense
affect the sources of responsible conduct. *

The testimony of Ferri, concerning the present
attitude of scientific criminologists toward reforma-
tion, is very explicit. "No doubt the principle that
punishment ought to have a reforming effect on the
criminal survives as a rudimentary organ in nearly
all the schools which concern themselves with crime.
But this is only a secondary principle, and as it
were the indirect object of punishment; and besides,

1 Cf. Drahms, op. cit.f p. 340.

106 CRIMINAL RESPONSIBILITY

the observations of anthropology, psychology, and
criminal statistics have finally disposed of it, having
established the fact that, under any system of pun-
ishment, with the most severe or the most indulgent
methods, there are always certain types of criminals,
representing a large number of individuals, in regard
to whom amendment is simply impossible, or very
transitory, on account of their organic and moral
degeneration. Nor must we forget that, since the
natural roots of crime spring not only from the in-
dividual organism, but also, in large measure, from
its physical and social environment, correction of
the individual is not sufficient to prevent relapse if
we do not also, to the best of our ability, reform the
social environment. The utility and the duty of
reformation none the less survive, even for the posi-
tive school, whenever it is possible, and for certain
classes of criminals; but, as a fundamental principle
of a scientific theory, it has passed away." '

Parsons criticizes adversely a statement from
Barrows to the effect that prison systems of the
future must demonstrate their value and utility
through the reformation of the prisoners. "Con-
ditions which warrant Mr. Barrows in making such a
statement lead us to expect that, for many years
to come, millions in state money and private funds
will be expended in carrying on a well-nigh hopeless
experiment which, if even moderately successful,
must work untold injury upon subsequent genera-
tions. Science has shown and is showing more and
more the narrowing field of reformation." 2

1 Ferri, op. cU., pp. xviii, xix.

* Parsons, "Responsibility for Crime," p. 63.

AND SOCIAL CONSTRAINT 107

McKim believes that criminality rests on defective
brain structure and organization, and that hence
reformation of the criminal is hopeless. "Toward
softening the flint-like obduracy of the moral imbecile
all remedies remain unavailing. We may in some
measure restrain but can never reform him. The
general public has not grasped the truth, now so well
established, that "moral sense," like every other
mental capacity, requires a fitting basis of brain-
structure, and that if this has never existed, or
has been destroyed by disease, a moral sense is
impossible." ■

The weakness of the reformative theory of pun-
ishment, on account of the impossibility of reform-
ing a truly bad man, was strongly brought out by
Schopenhauer at various places in his writings. He
said that the aim to amend the culprit proceeds on
the assumption that ignorance and distress are the
principal cause of crime. Yet, however large a share
these may have in many crimes, we dare not regard
them as the essential cause, for innumerable persons
living in the same ignorance and under absolutely
similar circumstances commit no crimes. The real
source of crime lies in the personal moral character,
which is original and unalterable. So moral refor-
mation is really not possible, but only deterrence from
the deed through fear. In order to understand the
problem in its full extent, let us recall how incredibly
great is the inborn difference between man and
man, in a moral and in an intellectual regard. Here
nobleness and wisdom; there wickedness and stupid-
ity. In one the goodness of the heart shines out of

1 McKim, "Heredity and Human Progress," p. 21.

108 CRIMINAL RESPONSIBILITY

the eyes, or the stamp of genius is enthroned in his
countenance. The base physiognomy of another is
the impression of moral worthlessness and intellect-
ual dulness, imprinted by the hands of nature itself,
unmistakable and ineradicable; he looks as if he
must be ashamed of existence. But to this outward
appearance the inner being really corresponds. We
cannot possibly assume that such differences, which
involve the whole nature of the man, and which
nothing can abolish, which, further, in conflict with
his circumstances, determine his course of life, are
merely the work of chance and instruction. How
could the untiring goodness of one man and the in-
corrigible and deep-rooted badness of another, the
character of an Antonine, a Hadrian, a Titus, on the
one side, and the character of a Caligula, a Nero, a
Domitian, on the other side, have come from with-
out, have been the work of accidental circumstances
or of mere knowledge and education? Indeed, Nero
had Seneca for his teacher. Rather, in the inborn
nature lies the real kernel of the whole man, the
seed of all his virtues and vices. The real will of a
man, according to Schopenhauer, cannot be reformed.
At the same time, the correction of knowledge
and the awakening of the desire to work can cer-
tainly be accomplished, and will be productive
of good social results. A sensible reformatory
system would not undertake to amend the heart
of a man, but would attempt rather to set his
head right and to show him that the aims which
he inevitably seeks on account of his character could
not be attained by the previous way of dishonesty
except with much greater difficulty, struggle, and

AND SOCIAL CONSTRAINT 109

danger than by the way of honesty, labor, and thrift.
Thus, in knowledge alone lies the sphere and prov-
ince of all improvement and amendment. The
character is unchangeable; motives work with
necessity, but have to go through knowledge as a
medium. This, however, is capable of innumerable
degrees of the most diverse development, extension,
and continual correction. To this end works all
education. The development of the understanding
through learning and information of every sort, is
morally important, because it opens the way for
motives to which, without it, the man would have
remained closed. So long as he could not understand
these, they were not present to his will. Thus, in
similar external conditions, the action of a man can
be entirely different the second time from what it
was the first, if he has in the meanwhile become
capable of rightly and fully comprehending these
circumstances, whereby motives now affect him, to
which he was earlier inaccessible. But with all this,
it needs to be definitely understood and remembered,
that moral influence extends no further than setting
one's knowledge to rights. The endeavor to remove
defects of character through preaching and moraliz-
ing, and thus to reform the real morality of a man,
is just like the attempt, through external influences,
to convert lead into gold, or through careful culture
to cause an oak tree to bear apricots. ■

The utter inability of punishment to effect the
moral reformation of the persons punished was
asserted also by Nietzsche, with characteristic em-

lCf. Schopenhauer, "Die Welt als Wille und Vorstellung," Bd.
H, S. 685-687; "Ueber die Freiheit des Willens," S. 52-54.

110 CRIMINAL RESPONSIBILITY

phasis and irony. He said that while punishment is
brimful of utilities of every sort, it need not be ex-
pected to accomplish reformation. When punish-
ment is intended to awaken the feeling of guilt, to
become an instrument for effecting that reaction
of soul which is called "guilty conscience," "the
sting of conscience," "the gnawings of remorse,"
man errs therein, in ignorance of psychology. The
real gnawings of conscience are extremely rare pre-
cisely among criminals and prisoners. Prisons and
houses of correction are not the breeding-places
in which this species of gnawing worm flourishes
readily. In this opinion all earnest observers agree,
even though in many cases such a judgment is ar-
rived at unwillingly and in opposition to fond wishes.
Taken in the large, punishment chills and hardens,
it intensifies the feeling of alienation, it strengthens
the power of resistance. If it happens to break the
will and produce prostration and humiliation, the
result is indeed less satisfying than the usual effect
of punishment. If we think of the thousands of
years in which the punishing authorities have sacri-
ficed their victims, we may realize how the develop-
ment of the feeling of guilt has been most effectually
restrained. We must not underestimate the extent
to which criminals, through seeing the judicial and
executive procedures, have been hindered from re-
garding their own deeds and ways as reprehensible.
For they perceive exactly the same kind of actions
practised in the service of justice and called good
and carried out with a good conscience — such acts
as spying, deceiving, corrupting, bribing, intriguing,
entrapping, the tricks and underhand dealings of

AND SOCIAL CONSTRAINT 111

the police in impeaching and indicting, and then
the unrestrained spoliation, suppression, dishonor,
disgrace, imprisonment, torture, murder — the vari-
ous forms of punishment. Criminals see that these
things, when done by others, are not all base or
condemnable actions in themselves, but only in- a
certain aspect and employment.

The "guilty conscience," that most unearthly,
most uncanny, and most interesting plant of our
earthly vegetation, does not, according to Nietzsche,
grow in such a soil. In fact, in the conscious-
ness of the judge and punisher, there was for the
longest time no trace of having to do with a "guilty"
person, but only with a damage-doer, with an ir-
responsible piece of destiny. And he on whom the
punishment, like a stroke of destiny, fell, had no
"inner pain" other than what the sudden happening
of some unexpected, horrifying, natural calamity,
a crushing block of stone, an invincible fate, would
give. For thousands of years the evil-doers who
have been overtaken by punishment have felt con-
cerning their "faults" or "transgressions": "Here
is something that has unexpectedly turned out
badly," but not "I ought not to have done that."
They have submitted to the punishment, just as any
one would submit to sickness, or misfortune, or
death, with cheerful fatalism without revolt. If
there happened to be any criticism of the deed, it was
on the part of shrewdness. Without doubt, we must
look for the real effect of punishment especially in
a sharpening of cleverness, in a lengthening of mem-
ory, in a determination to go to work hereafter with
greater foresight, secrecy, and distrust, in a recogni-

112 CRIMINAL RESPONSIBILITY

tion that for many undertakings a man is simply too
weak, in a kind of improvement of self -judgment.
What can be attained, in general, by punishment,
whether of man or animal, is the increase of fear,
the sharpening of cleverness, the mastery of desire
and passion. In this wise, punishment tames a man ;
but it does not make him "better" — the opposite
is nearer the truth.1

1 Cf. Nietzsche, "Zur Genealogie der Moral," S. 375-378.

CHAPTER V

.-.■•'
PUNISHMENT FOR SOCIAL UTILITY

The preceding discussion has doubtless shown
the difficulty of discovering a satisfactory purpose
in punitive treatment. It may have convinced some
readers that punishment can be justified by no ob-
ject, but is essentially wrong. It may have led
others to the conclusion that there is an element of
truth in nearly every one of the theories which we
have examined, even though the theory be inade-
quate as a statement of the main design in inflicting
penalty. The latter persons would say that it is
impossible to restrict punishment to one determinate
aim. Its aim is complex. It is not an instrument
invented to accomplish one specific purpose, but is
a historical growth, which has taken into itself many
diverse, almost incompatible, elements. An ade-
quate conception of punishment must be large enough
to include, and to do justice to, the various elements
that have combined in it.

This notion is often maintained; and there have
been one or two attempts to state the object of
punishment in such a large conception that all
the various elements could find a suitable place.
The most important of these is the one which sets
up the general formula : Punishment is administered
for the sake of its social utility. Let us analyze this
idea in order to see exactly what it means. And

113

114 CRIMINAL RESPONSIBILITY

let us first make out as strong a case for this theory as
possible, leaving for later consideration the question
as to whether it needs modification in any respect.

Some other statements of this view are : Punish-
ment is given for social defence, for social protection,
for social security, for the prevention of disturbance
in the economic, political, and general social order,
for the realization of the social ideal, for the promo-
tion of the general well-being, for the attainment of
the greatest happiness of the greatest number.

It will be noticed that all of these relinquish the
idea of concern with the individual per se. Punish-
ment does not function as a spiritual guide for the
individual, ^ts object is not. moral or religious
goodness. It is not concerned with individual per-
sonaT'virtue. Its notion is wholly social. It is
justified on account of its utility, its necessity for
the intercourse of men. It is given because essential
to the preservation of organized society. If crime
were not subjected to corrective discipline in a reg-
ular and orderly way by the collective authority,
society would soon become disorganized. Punish-
ment is necessary in order to enable people to carry
on business peaceably, to live in security, and to
enjoy life. The system of social rights and obliga-
tions can be maintained only through afflictive
penalties. The criminal violates the conditions of
general well-being; and in so far as he injures the
common good, he forfeits his rights at the hands of
the public. His punishment is justified by its social
necessity. Thus society resembles a mutual insur-
ance association, in which the members unite their
strength against a common danger and insure each

AND SOCIAL CONSTRAINT 115

other against harm. It must eliminate what is pre-
judicial to its existence. The degree of the danger-
ousness of the criminal is the consideration by which
society should be guided in determining the correc-
tive treatment for him. Punishment, therefore, has
no meaning except as intended to secure the greater
and more perfect organization of society.

With the general formula of social utility in mind,
let us see what measure of validity can be ascribed
to each of the more specific objects which we have
already considered.

In the first place, it seems that no validity can be
assigned to the aim at expiation. So far as social
protection is concerned, expiation may be a matter
of indifference. Let injuries to the gods be the con-
cern of the gods. No man must attempt to be the
vicegerent of God on earth to avenge supposed of-
fences against the divine. No man has the social
right to force his religious views on others who think
differently. Conscience is a sacred part of the in-
dividual's rightful liberty. In the case of religious
belief, the claim of some individual, or of the whole
of society, to exercise authority over a person who
dissents is to be denounced as a violation of social
right. No restrictions must be placed on conduct
on the ground that such conduct is religiously wrong.
The notion that it is one man's duty that another
should be religious, and that the first fulfils his
duty in compelling the second to be religious, was
the foundation of the great persecutions. Incalcu-
lable social harm has been done by man's attempt
to conduct a theocracy on earth and to punish for
heresy. History abounds in mistakes of this nat-

116 CRIMINAL RESPONSIBILITY

ure. Socrates was put to death on the charge of
impiety and immorality — impiety in denying the
gods of the state, and immorality in his teachings to
the young men of the state. Jesus was put to
death on the charge of blasphemy, and was regarded
as the personification of impiety. The Inquisition
persecuted and put to death on religious and theo-
logical grounds thousands of good persons.1 Only
social harm can result from basing the state and its
punishments upon religious belief. It means the
exaltation of a priestly ruling class who must be
accounted the vicegerents of God; it means the im-
possibility of experiments in government and the
correction of mistakes through experience; it means
the deterioration of the individual's powers — he is
deprived of self-government and made the slave of
a despot.

Punishment, then, must be founded, not on a
religious creed, but simply on social well-being. The
collective welfare is the only proper aim for the col-
lectivity. The common good lies in bringing about
such conditions that each member shall have full
scope for realizing himself without diminishing other
men's spheres of activity. The general weal con-
sists in the largest amount of collective freedom with
the least individual restraint. That organization of
society should be sought which will make possible
the full development and expression of human nat-
ure, the perfect realization of human capacities and
possibilities. This is the aim that society should
have in view in its corporate activity, and this prin-

1 Cf. Mill, "On Liberty," chap. II, "The Liberty of Thought and
Discussion."

AND SOCIAL CONSTRAINT 117

ciple of social well-being may be given as the ground
for punishment or interference with the liberty of
action of any offending member. "On this basis
society has a reasonable justification to offer to the
individual. This interference is necessary for the
social well-being — the well-being of the individual
himself and of all other individuals. The State
exists not for one, not for a few, not for the ma-
jority, but for all. The true function of the State
is to secure the fulfilment of the personal life of
its citizens. The State is the vehicle by which
the citizens attain to their full personal develop-
ment. The State does not "interfere"; the State
intervenes to protect the person and maintain
the possibility for unhindered development of per-
sonality, by seeing that no individual encroaches
upon other individuals, but that all have full op-
portunity of ethical self-realization. The principle
of State action should be this: To secure such an
organization of society that in it all persons may have
full opportunity to live their largest lives." '

The aim at expiation, then, is irrational, anti-
social, and unjustifiable. Let us see next what meas-
ure of validity, when social utility is our criterion,
can be ascribed to the principle of punishing for
retribution.

Retribution is justified in part. That punish-
ment should have regard for the past seems to be
socially necessary. There is rather a fine point of
discrimination here. Retributive infliction of pain

1 McConnell, "The Ethics of State Interference in the Domestic
Relations," in International Journal of Ethics, April, 1908, vol.
XVIII, p. 374.

118 CRIMINAL RESPONSIBILITY

is right, not per se, but because socially useful. The
point of view must not be limited to the past, but
must comprehend also the future. The justification
of punitive correction comes from its efficacy for
the future; but this efficacy is dependent in part on
punishment's being applied with a certain reference
to the past. Punishment cannot be socially useful
unless it is joined to past crime and corresponds in
degree with the gravity of the crime. To be socially
beneficial, it must not be applied to innocent persons
and must not transcend the limits of social resent-
ment for harm done.

The retributory aim, then, can be pronounced
just, only in so far as socially useful. "Nemesis, the
goddess of vengeance, is gone, and in her place stands
Justice, with bandaged eyes, holding the scales. But
as we gaze longer, the figure melts away, and there
looms dimly in the background the colossal phan-
tom of Society, with eyes wide open and the sword
of self-defence in her hand." * Without the justi-
fication of social necessity, punishment would be as
blameable as crime, judges and legislators would be
as bad as feudists, jailers would be as guilty as the
prisoners, and executioners would be as criminal as
the assassins. It is the element of social utility in
punishment that makes the difference between the
punishing authorities and the criminals punished.

On the basis of social necessity, then, legal ven-
geance is justified. Crime unpunished is an element
of destruction. Every one must know that the
rights of other people set limits to his own will; and
that he can not infringe them without being made to

1 Ross, op. cii., p. 108.

AND SOCIAL CONSTRAINT 119

requite the wrong that he has done. Only in case
people generally know that wrong-doing will meet
with an adequate and certain return to the wrong-
doer can society be protected. There must be good
laws, and the penalties of the laws must be carried
out with certainty.

Punishment for retribution is socially useful, not
only on account of its effects on criminals, but also
because of its influence on other people. When
punishment for a crime is not given, public indig-
nation is apt to find a vent in a less regular and
less discriminating mode of vengeance, like lynch-
ing. * That retributive justice is socially useful
is shown also by the following considerations: It
gratifies the general and natural feeling of resent-
ment; a it serves "as an outlet, a kind of safety-
valve, for the indignation of the community ";* it
elevates the moral feelings of the public at large
and strengthens men's disinterested sentiments; *
it "can alone produce the associations which make
the conduct that incurs it, ultimately hateful in
itself, and which by rendering that which is injurious
to society, sincerely distasteful to its individual mem-
bers, produces the fellowship of feeling which gives
them a sense of common interest, and enables them to
sympathize and co-operate as creatures of one kin." 5

The motive of deterrence in punishment is fully

1Cf. Westermarck, op. cit., vol. I, pp. 90, 91.

aCf. Adam Smith, "Theory of the Moral Sentiments," part II,
section I, chap. I.

8 Cf. Maine, "Ancient Law," 4th edition, 1870, p. 389.

* Cf. Kenny, op. cit., p. 29.

8 Mill, "An Examination of Sir William Hamilton's Philosophy,"
4th edition, p. 593.

120 CRIMINAL RESPONSIBILITY

justified by the end of social utility. Society would
be protected if criminals and would-be criminals were
deterred from the commission of crime. This larger
principle includes the principle of deterrence in its
entirety, and has room left also for other aims. The
notion of social utility changes and supplements the
formula, "Punishment should achieve the maximum
of deterrence," so as to read, "Punishment should
achieve the maximum of social welfare with the min-
imum of suffering and loss."

The general purpose of accomplishing the greatest
good allows punishment to be reformative as well as
retributive and deterrent. Society's first duty is
self-defence. It can usually defend itself best by
making the criminal, where possible, a healthy and
useful member of the social body. But where this
is impossible, or where the attempt to do this endan-
gers its own existence, its duty is plain, to protect
itself. The reformation of the wrongdoer is highly
gratifying if it can be brought about, but the object
of primary concern is social protection. "Cure of
the individual, if cure can be possible, but in any case
defence of Society against his noxious freedom." 1

In some extreme cases, of course, protection can
be accomplished only by measures which the Italian
school described as either the "absolute " or the "rel-
ative" elimination of the criminal, that is, either by
killing him, or by incarcerating him in a lunatic
asylum, or by banishing him. ' But such absolutely
incorrigible malefactors must be considered rare.
The great majority of offenders, especially juvenile

1 Gray, "Philanthropy and the State," p. 194.
* Cf. Ferri, op. cit., pp. 204 ff.

AND SOCIAL CONSTRAINT 121

delinquents, must be regarded as criminal, not on
account of defective brains, but as the result of de-
fective education, especially home training. With
all these, the aim of punishment must be not simply
repression and deterrence, but reformation. "Where
a virulent and highly infectious disease is epidemic
among cattle, the practical question to be decided
is whether the infected animals shall be quarantined
and confided to the care of expert veterinarians for
their recovery, or whether the danger to healthy ani-
mals shall be averted by the relentless slaughter of all
suspects. The question of criminal contagion presents
itself under a similar aspect. Reformatory methods
are more humane, and, where they succeed, equally
effective. Repression [or elimination] is possibly
speedier and more certain. Cannot both methods
be combined, in a single system, by dividing convicts
into two groups, the corrigible and the incorrigible,
and dealing with them separately?" * Elimination,
either "absolute" or "relative" may be justified in
the case of the incorrigible criminals, but as regards
the great majority of offenders, those who are de-
linquent as the result of improper training, reforma-
tion is the course for society to pursue.

Usually it is only in the amendment of the anti-
social will that" a" permanent protection from crime
is to be found. A thorough-going prevention of in-
jury implies the reformation of the injurer. Punish-
ment that does not effect this is inadequate. The
only way in which the state can permanently deter
the malefactor from evil deeds is by educating him
to better things. The social well-being is best served

1 Wines, " Punishment and Reformation," pp. 252, 253.

122 CRIMINAL RESPONSIBILITY

when the wrongdoer's character is reformed. So-
ciety must regard, not only the act, but also the
person. It is true that for society there exists only
a social responsibility, never a moral responsibility;
but nevertheless it is the character that society must
concern itself with and endeavor to reform. An act
is never isolated, but is a symptom; and social pre-
caution must consider the significance of this symp-
tom, and must try to find out the internal condition
of the person. Social precaution regards, not only
the act and its motives, but also the will behind the
act. This will, no matter what it may be from a
metaphysical or ultimate point of view is mechani-
cally and objectively a force which must enter into
social calculations. By will or character is meant
simply the system of tendencies of every sort which
the individual customarily obeys and which con-
stitute his social self. From another aspect the will
or character may be estimated by the resistance
which this interior energy is capable of presenting
against anti-social motives or enticements. Until
punishment has regenerated the heart of the crimi-
nal, until it has aroused the working of the intellect-
ual and moral forces of his nature, it has not accom-
plished its full and sufficient result for society. The
best means of preventing the recurrence of a wrong
act is the improvement of the culprit. Society
ought to endeavor to improve the mentality and
morality of the deliquent. There must be an inner
as well as an outer reformation. Restraint from
crime is not all that society desires from its members.
It needs active co-operation in the attainment of
good. A former enemy must be converted into a

AND SOCIAL CONSTRAINT 123

friend; a destructive social force into a constructive
one.

The principle of social utility justifies treatment
of crime and criminals with the aim also of preven-
tion. The surest of all plans for protecting society
from the ravages of crime would be to stop the manu-
facture of criminals. "A far-sighted policy, such as
the training of the young, is preferable to the sum-
mary regulation of the adult. In the concrete these
maxims mean that the priest is cheaper often than
the detective, that the free library costs less than the
jail, and that what is spent on the Sunday school is
saved at Botany Bay. It is, then, strictly scientific
to emphasize the ceremonial salutation of the flag
in army or navy in order to economize in courtmar-
tial, to prefer a little reform school for the boy to
much prison for the man, and to reform the law-
breaker rather than to catch and convict him after
a fresh offence." * "The only thing that can enable
society to dispense with control is some sort of favor-
able selection. The way to create a short-clawed
feline is not to trim the claws of successive genera-
tions of kittens, but to pick out the shortest-clawed
cats and to breed from them. Similarly it is only
certain happy siftings that can shorten the claws of
man. . . . The wiping out of the rampant by private
enterprise makes way for the social reaction that
converts the bully into the criminal and kills or jails
him by constituted agents. It is processes like these,
affecting the relative birth-rates or death-rates of
the social and the anti-social classes, which solve the
problem of order in such a manner that it stays

1 Ross, op. cit., pp. 428, 429.

124 CRIMINAL RESPONSIBILITY

solved. Mere control, on the other hand, is, like
sustentation or defence, something that must go on
in order that society may live at all. Men and wom-
en are socialized once for all, but in time the
socialized units die while new, undisciplined persons
keep swarming up onto the stage of action. The
equilibrium achieved is perpetually disturbed by
changes in the personnel of the group, and hence
perpetually in need of being restored by the conscious,
intelligent efforts of society." ■

The aim at prevention is the latest development
in society's war against crime.2 The most far-seeing
students of criminology are working at the problems
of anticipating anti-social conduct and of erecting
barriers in its way. Some of the most important
of the means of prevention are : adequate educational
institutions and facilities for the young of both sexes,
playgrounds, prevention of child labor, reformatory
institutions for juvenile offenders, juvenile court and
probation system, care of destitute children, reform
of the police system, suspension of sentence with
surveillance without commitment to prison, better
organization of the industrial order, regulation of
immigration, national assimilation of immigrants,
purification of home life, reform of political activity,
abolition of intemperance, prevention of the trans-
mission of hereditary defectiveness and criminality,
care for discharged prisoners, improved housing,
public hygiene and prevention of disease, remedies
for unemployment, vocational training, institutions

1 Ibid., pp. 60, 61.

3 Cf. Henderson, "Preventive Agencies and Methods"; Wines,
op. cit., chap. XIV; Drahms, op. cit., chap. XIII; Boies, op. cit.,
chaps. XVI-XIX.

AND SOCIAL CONSTRAINT 125

of thrift and of insurance against the losses and bur-
dens of accident, sickness, and death, control of
prostitution, extension of the means of popular
recreation, broadening and deepening of general cult-
ure, and the creation of higher interests among men
and women than the elementary and animal appetites
and passions.

Before closing this exposition of the object of pun-
ishment according to the principle of social utility,
we must call attention to the fact that through the
consideration of the various problems connected with
society's object in punishing, we have been led grad-
ually to face the great problem of society's right to
punish. What makes punishment a right of society?
On what ground does the justice of punishment rest?
We are unable to reach a decision on these other
questions until we have arrived at a decision on this
question of right. So the problems which we have
been considering must be held more or less in suspen-
sion through the remaining considerations of this
book. Their solution depends on the solution of the
more fundamental problems yet to be considered.
Many criminologists and philosophers maintain that
the penal function is not purely social but is moral
as well. These persons set up the criterion of moral
responsibility based on moral freedom. It there-
fore behooves us to undertake a searching analysis
of the doctrines of freedom and responsibility in their
relations to crime.

PART II

FREEDOM IN CRIME

CHAPTER VI
STATEMENT OF OPPOSED VIEWS

Some notion of freedom and responsibility lies at
the basis of any one's philosophy and practice of
punishment. The practical importance of these con-
ceptions has sometimes been denied; but is readily
recognized if any one reflects about such an incident
as the following: Two men are arrested for having
committed murders. The one is placed in a lunatic
asylum, is given a comfortable room, good food, med-
ical attendance, exercise, reading matter, and visits
from friends and relatives. The other is hanged or
electrocuted. Why this difference of treatment? It
is based on diverse conclusions as to the freedom
and responsibility of the two murderers.

But is the disagreement in the conclusions as to
the freedom and responsibility of these two criminals
justifiable? Was the culprit who was hanged really
"free"? Could he have helped doing what he did?
Or was his deed determined as necessarily as was
that of the other who is cared for so tenderly and
sympathetically? Many of the world's greatest
scholars and scientists maintain that all the acts of
every one are necessitated with the same inevitable-

127

128 CRIMINAL RESPONSIBILITY

ness as is a flash of lightning or the falling of a rain-
drop. Others declare that the acts of most men are
expressions of a "free-will," which might have pro-
duced acts entirely the contrary of these. For ex-
ample, James said: "What is meant by saying that
my choice of which way to walk home after the lect-
ure is ambiguous and matter of chance as far as the
present moment is concerned? It means that both
Divinity Avenue and Oxford Street are called; but
that only one, and that one either one, shall be chosen.
Now, I ask you seriously to suppose that this ambi-
guity of my choice is real; and then to make the
impossible hypothesis that the choice is made twice
over, and each time falls on a different street. In
other words, imagine that I first walk through Divin-
ity Avenue, and then imagine that the powers govern-
ing the universe annihilate ten minutes of time with
all that it contained, and set me back at the door of
this hall just as I was before the choice was made.
Imagine then that, everything else being the same,
I now make a different choice and traverse Oxford
Street. You, as passive spectators, look on and see
the two alternative universes, — one of them with
me walking through Divinity Avenue in it, the other
with the same me walking through Oxford Street.
Now, if you are determinists you believe one of these
universes to have been from eternity impossible : you
believe it to have been impossible because of the in-
trinsic irrationality or accidentality somewhere in-
volved in it. ... I have taken the most trivial of
examples, but no possible example could lead to
any different result. For what are the alternatives
which, in point of fact, offer themselves to human

AND SOCIAL CONSTRAINT 129

volition? What are those futures that now seem
matters of chance? Are they not one and all like
the Divinity Avenue and Oxford Street of our ex-
ample? ... Of two alternative futures which we
conceive, both may now be really possible ; and the
one become impossible only at the very moment
when the other excludes it by becoming real itself.
. . . The question relates solely to the existence of
possibilities, in the strict sense of the term, as things
that may, but need not, be. Both sides admit that
a volition, for instance, has occurred. The inde-
terminists say another volition might have occurred
in its place: the determinists swear that nothing
could possibly have occurred in its place." *

James maintained that the indeterminist is right,
that on leaving the lecture hall he could have walked
home by either road. The determinist declares that
it was no more possible for James to have walked
home by a road other than the one he walked by,
than it was possible for him to have talked to his
attendant in just any language whatsoever and on
just any subject whatsoever. In other words, the
route he took was determined by causes which made
that route the only one possible, just as the topic
of conversation and the language in which it was
held were fixed by past events which did not per-
mit any different result. The indeterminist or free-
willist asserts that at any moment of action dual
possibilities are open to the actor. He may strike
out upon one line of conduct, but it is equally pos-
sible for him to take some other. His will at any

'James, "The Dilemma of Determinism," in "The Will to Be-
lieve," pp. 150-157.

130 CRIMINAL RESPONSIBILITY

moment is free. It is not determined by what has
gone before. It is not caused, constrained, deter-
mined, but is itself a first cause, spontaneous, free.

The free-willist regards a man as having come into
the world as a moral blank, so that, in virtue of his
"free-will" considering objects which have neither
to be sought nor avoided as the result of his nature
and circumstances, he may "choose" whether he is
to be an angel or a devil or anything else that may
lie between the two.1

Practical action is bound to be modified by the
view which any one takes on this matter of freedom
or determinism. Whenever a determinist regards
an act, he feels justified in inquiring for its causes.
He looks for the motives which determined the will
of the actor. The free-willist, on the contrary, may
think such a procedure useless. He thinks that the
will was free, and not necessitated by antecedent
events. A man has stolen something: the de-
terminist inquires, "Why did this man steal?"
The free-willist replies, "Because he wished to."
The determinist asks, "What caused him to wish
to steal?" The free-willist answers, "Nothing;
nothing caused him to steal, or to want to steal.
He could have refrained from stealing. He stole
simply because he wanted to steal. That is the end
of the matter." A drunkard is arrested and brought
up for trial. The determinist judge says, "This man
inherited an uncontrollable thirst for alcohol; he
needs to go to a sanatorium for treatment and cure."
The free-willist judge asserts, "It does not make any
difference how many generations of this man's ances-

1 Cf. Schopenhauer, "On Human Nature," p. 87.

AND SOCIAL CONSTRAINT 131

tors drank whiskey; he need not have drunk it, and
ought not to have drunk it. Let him be punished
with the maximum imprisonment." A girl prosti-
tute is arrested: the determinist policeman says,
"Don't be too hard on her, judge; her mother is a
prostitute and keeps a house." The free-willist
judge replies, "That does not matter at all. She
could have refrained from being a prostitute. Every
human being is endowed with freedom of will, with
the capacity of choosing whether or not the conceived
action shall be done. When this girl was called on
to make the choice, she ought to have chosen the
other way. Let her be punished to the full extent
of the law."

Each side in this controversy about free-will and
determinism has tried to show that morality and
theism depend on the reception of the doctrine cham-
pioned. For example, Naville says: "In order to
appreciate the gravity of the question that is brought
up, it is enough to understand that without an
element of liberty there is no responsibility, and that
absolutely to deny responsibility is to undermine the
foundations of all our moral and social ideas; it
means that we should be willing to strike out of the
dictionary the words, duty, good and bad morals,
or at least give these words, if they should be re-
tained, a wholly different meaning from that which
mankind has always given them."1 Hamilton
taught: "It is self-evident, in the first place, that if
there be no moral world, there can be no moral
governor of such a world; and in the second, that

1 Naville, "Le libre arbitre, e*tude philosophique" (Geneve, 1898),
quoted by Dubois, op. cit., p. 50.

132 CRIMINAL RESPONSIBILITY

we have, and can have, no ground on which to be-
lieve in the reality of a moral world, except in so
far as we ourselves are moral agents. . . . Man is
a moral agent only as he is accountable for his
actions, — in other words, as he is the object of
praise or blame; and this he is only, inasmuch as
he has prescribed to him a rule of duty, and as he
is able to act, or not to act, in conformity with its
precepts. The possibility of morality thus depends
on the possibility of liberty; for if man be not a
free agent, he is not the author of his actions, and
has, therefore, no responsibility, no moral personality
at all."1 A good statement of this argument was
formulated by Hume as follows: "If voluntary
actions be subjected to the same laws of necessity
with the operations of matter, there is a continued
chain of necessary causes, pre-ordained and pre-
determined, reaching from the original cause of all
to every single volition of every human creature.
No contingency anywhere in the universe; no in-
difference; no liberty. While we act, we are, at the
same time, acted upon. The ultimate Author of
all our volitions is the Creator of the world, who first
bestowed motion on this immense machine, and
placed all beings in that particular position, whence
every subsequent event, by an inevitable necessity,
must result. Human actions, therefore, either can
have no moral turpitude at all, as proceeding from so
good a cause; or if they have any turpitude, they
must involve our Creator in the same guilt, while he
is acknowledged to be their ultimate cause and
author. For as a man, who fired a mine, is answer-

1 Hamilton, "Lectures," i, 32, 33, quoted by Mill, op. cit., p. 566.

AND SOCIAL CONSTRAINT 133

able for all the consequences whether the train he
employed be long or short; so wherever a continued
chain of necessary causes is fixed, that Being, either
finite or infinite, who produces the first, is likewise
the author of all the rest, and must both bear the
blame and acquire the praise which belong to them.
. . . Ignorance or impotence may be pleaded for so
limited a creature as man; but those imperfections
have no place in our Creator. He foresaw, he or-
dained, he intended all those actions of men, whiqh
we so rashly pronounce criminal. And we must
therefore conclude, either that they are not criminal,
or that the Deity, not man, is accountable for them.
But as either of these positions is absurd and im-
pious, it follows, that the doctrine from which they
are deduced cannot possibly be true, as being liable
to all the same objections." 1

It would be equally easy to quote passages from
determinists to the effect that determinism is the
only satisfactory basis for morals and religion. It
will doubtless suffice merely to call attention to the
fact that "nearly all the theologians of the Refor-
mation, beginning with Luther, and the entire series
of Calvinistic divines represented by Jonathan Ed-
wards, are proofs that the most sincere Spiritualists
may consistently hold the doctrine of so-called Ne-
cessity." 2

This is doubtless the proper place to notify the
reader that the author does not intend to bring God
into the following argument at all. He regards any
such argument as entirely worthless; and he has

1 Hume, op. cit., pp. 99, 100.
* Mill, op. cit., p. 568.

134 CRIMINAL RESPONSIBILITY

absolutely no sympathy with the practice of trying
to bribe the reader by the assurance that such and
such a doctrine is the only valid support for some
religious view or prejudice.

CHAPTER VII

THE PSYCHOLOGY OF WILL, MOTIVE,
AND CHOICE

Concerning the nature of will and volition, the
free-willist and the determinist hold entirely different
views. The free-willist believes that over and above
the particular acts of volition there is a certain entity
called the will, which is, as it were, a sort of person-
age within the human person. This will is free. It is
an autocrat. Various motives appeal to it. It sits
in judgment over them, and "decides" freely which
shall be followed. Diverse roads of action lie before
it : it "chooses " freely which one it will take. Good-
ness and badness are offered to it: it "prefers" the
one rather than the other.

The free-willist implies that the will is a distinct
entity whenever he ascribes "freedom" to it. Only
such a conception is compatible with his constant
comparison of the will to a person, and of freedom of
the will to the liberty of personal action, and of de-
termination of the will to constrained personal be-
havior. The determinist, however, maintains that
we must not think of the will as a person or as an
independent existence, but only as a sum of proc-
esses. Science proceeds on the principle that the
real is what can be experienced, what can be ob-
served and classified. Now, what science observes
and classifies is not "the will," but simply volitional
processes. There are mental events, and there are

135

136 CRIMINAL RESPONSIBILITY

physical events; and science can trace the sequence
of antecedents and consequents in either series, as
well as the relation of the one series to the other.
Psychology's success in accounting for all the phe-
nomena of volition without the hypothesis of "the
will" as an active agent suggests very forcibly the
superfluity of such a hypothesis. Scientific psy-
chology has taken away the occupation of the meta-
physical "will."

Processes must not be erected into independent
existences. Present-day psychology does not admit
the existence of such entities as "the will," which
wills, "the intellect," which thinks, and "the sen-
sibility," which feels, — as it were, three persons
within the one person. It recognizes only distinct
processes, elementary and compound. And no one
of these — whether it be a feeling-process, or a
thought-process, or a volition-process — is properly
called "free." It is connected with, and dependent
on, others. When we regard any of the separate
acts of volition, and notice its connection with ante-
cedent and subsequent processes, we perceive how
incorrect it is to speak of it as "free." A volition
is no more "free " from connection with other psychi-
cal activities than a man's body is "free" from re-
lationship with other physical matter. A volition
has no more "liberty of choice" as to whether it will
depend on other mental processes, than a man's
body has "liberty of choice" as to whether it will
touch other matter.

Locke, although speaking generally in the lan-
guage of "the faculty psychology," once stated pretty
well the true nature of the case, and his quaint way

AND SOCIAL CONSTRAINT 137

of expressing it would hardly be found objectionable
by present-day psychology. "It is as insignificant
to ask whether man's will be free, as to ask whether
his sleep be swift, or his virtue square: liberty being
as little applicable to the will, as swiftness of motion
is to sleep, or squareness to virtue. Every one
would laugh at the absurdity of such a question as
either of these; because it is obvious that the mod-
ifications of motion belong not to sleep, nor the
difference of figure to virtue; and when any one well
considers it, I think he will as plainly perceive that
liberty, which is but a power, belongs only to agents,
and cannot be an attribute or modification of the
will. . . . Who is it that sees not that powers be-
long only to agents, and are attributes only of sub-
stances, and not of powers themselves? So that
this way of putting the question, viz., Whether the
will be free? is in effect to ask, Whether the will be a
substance, an agent? or at least to suppose it, since
freedom can properly be attributed to nothing else." l
The volition-process is thoroughly dependent on
the feeling-processes and the thought-processes.
This is true of it in all its stages, from the lowest
form of impulsive action to the most highly developed
form of decision and resolution. Volition is a func-
tion of the supreme brain-centres. Hence it varies
in quantity and quality as its cause varies; it is
strengthened by education and exercise; it is en-
feebled by disease ; it decays with decay of structure ;
and it always needs for its outward expression the
educated agency of the subordinate motor centres.

'Locke, "An Essay Concerning Human Understanding," Book
II, chap. XXI, sees. 14-16.

138 CRIMINAL RESPONSIBILITY

The determinist thus argues against the free-willist
that the doctrine of freedom of the will rests on a
wrong conception of the nature of will. Will is not
to be considered an entity, but only a compound of
psychical processes. There is never a single and un-
changing will. Each individual has many wills,
varying according to age, state of health, and other
conditions of life. All the separate acts of volition
are to be regarded, not as "free," but as causally
related to other psychical processes.

Motives, also, are differently viewed by the free-
willist and the determinist. The free-willist takes
objection to the claim that the will is determined
by motives. According to him, it sits in judgment
over them, and can set aside the strongest in favor
of the weakest, or can give a decree in defiance of
any and all. The determinist thinks the will en-
tirely determined by motives — always obedient to
the strongest. Motives are dependent on emotions
and ideas, feelings and sensations, instincts, desires,
passions, heredity, environment, and education.
The determinist believes that every action takes
place in accordance with the preponderance of in-
fluence from these various sources. The free-willist,
however, thinks that the will judges every action
immediately, without determination by antecedent
events. Each act takes its origin, not in past in-
heritance and experience, but simply in a present free
choice of the will. The will has no solidarity with
nature. It receives from God all that it has and is.
It does not submit to the influences from here be-
low. It acts in view of the objects above. It car-
ries in itself the reason and cause of its acts. It is

AND SOCIAL CONSTRAINT 139

not a mere link in a chain of causes and effects, but
is a first cause.

The free-willist hinges all morality on the existence
of the free-will. I am not a moral person unless I
can say, "This is my own act. I freely choose it.
My choice is not determined by the past. It is freely
made, perhaps in despite of any and all motives that
are present. To say that I am determined by mo-
tives is to rob me of my freedom and originality.
It is to make of me a passive link in an inevitable
chain of sequence. It is to make of me a thing, and
not a person, not a free moral agent." The de-
terminist argues that the word freedom has no mean-
ing other than that of the absence of external con-
straint. If I am compelled by another person to act,
then I may not be said to be free. But the word
freedom is out of place when used in connection with
obedience to motives. Various motives concur and
compete in urging me to act. The resulting volition
shows that one group of them has been stronger than
the others. It is wrong to call this volition either
free or unfree. Motives are not external to a man,
and are not alien forces which move him in a direc-
tion contrary to his wishes. So it is incorrect to say
that if he is determined by motives he is in so far
not "free." They are nothing apart from him. Act-
ing under the determination of motives dependent
on emotions, feelings, appetites, desires, passions,
aversions, ideas, associations of ideas, memories,
and habits, is not the same as acting under external
compulsion, and is not inconsistent with self-de-
termination and moral responsibility. It is absurd
to give such a meaning to the word freedom as to

140 CRIMINAL RESPONSIBILITY

indicate that a man ought to be able to choose to act
in a direction contrary to the strongest motive or
strongest group of motives that happen to be present
to his mind at the moment of action.

Thus the free-willist commits not only the error of
personifying the will as an entity distinct from the
particular processes of volition; he is guilty also of
the mistake of regarding determination by motives
as a species of external constraint inconsistent with
self-determination and moral responsibility.

To will something means that a volition arises in
consequence of a consciousness of an object which
becomes a motive and aim of action. A volition is
essentially simply a form of reaction upon the con-
sciousness of an object; and could not take place
without this, since then both occasion and material
for the reaction would be lacking. When this object
is present in consciousness, under exactly the same
conditions, that particular volition must ensue, it
cannot fail, it cannot be different, it cannot be dis-
placed by some other volition. In short, the will is
necessarily determined by motives, and has not "the
liberty of indifference," the ability, in the presence
of motives, either to act or to refrain from acting.
The process of deliberation is nothing other than the
conflict of motives in the arena of consciousness.
The various motives contend against one another
for the mastery, until one proves itself the victor
and drives the others off the field and determines the
will. This result is called a "decision." The whole
process, however, takes place with necessity.

The determinist, so far from supposing each act an
absolute commencement, a creation ex nihilo, by the

AND SOCIAL CONSTRAINT 141

will as a first cause, maintains that each act is caus-
ally related with antecedent, simultaneous, and sub-
sequent events. He would seek out the connections
of the act with some desire or group of desires which
produced it, and would then trace these back to their
causes, and so on in infinite regression. A volition
is not something isolated, unconnected, independent
of preceding psychical processes. A spring could not
say of a drop of water which it sent forth, "That is
my drop of water. It derived all its qualities from
me, from a free choice, a free decision of my will. I
have decided freely whether that drop should be pure
or impure, saline or sweet, alkaline or acid, sulphur-
ous or chalybeate." Any one would know that the
drop of water did not have an absolute commence-
ment at the mouth of the spring; but that it owed its
qualities to the soils and ores through which it passed ;
and that the course of its history might be retraced
to the snows of the mountains, to the clouds above,
to the ocean beyond. It is the same with a volition.
A person cannot properly say, "That is my volition.
It derived all its qualities from a free choice, a free
decision of my will. My will decided, as a first
cause, whether this volition was to be socially
beneficial or harmful." The history of that volition
may be retraced among appetites, desires, passions,
education, training, and heredity. It can be fol-
lowed back indefinitely into the past, just as it
can be followed on indefinitely into the future.
The proper conception of it is as an intermediary
link in a sequence of causes and effects without
beginning and without end.
The free-willist asserts that the will is not deter-

142 CRIMINAL RESPONSIBILITY

mined by motives, but is the free creator of its voli-
tions, choices, and decisions. It stands out as sep-
arate and distinct from the natural order which is
under the dominion of cause and effect. Each vol-
untary act must be regarded as something absolutely
new in the universe, deriving its origin solely from
the will, which is wholly independent of antecedent
events whether external or internal. The will is an
uncaused cause. It sends forth its expressions en-
tirely of itself, free from determining influence.
Every choice or decision is an "absolute commence-
ment " of a new series of occurrences.

The determinist, on the other hand, thinks that a
correct simile for the will is that of a balance scale
which can never stir from its equilibrium unless some-
thing is laid in one of the scale pans and becomes a
cause of the movement.1 As little as the scale could
set itself in motion, so little could the will produce of
itself an action. Volition must be motived by some-
thing which positively causes action. The determin-
ing forces which act upon the will are of two kinds,
— those that come from without, namely, from cir-
cumstances, and those that come from within, name-
ly, from character, that is, from the inclinations and
tendencies to action which are essential in the man,
and by virtue of which the external conditions are
shaped in their influence as motives. From all this it
is obvious that the will is not " free." The turning of
the balance is determined by the weights that are
placed upon it. The causality runs back, therefore,
to whoever or whatever laid the tendencies in the
character and determined the occasions and induce-

lCf. Schopenhauer, "Ueber die Freiheit des Willens," S. 73.

AND SOCIAL CONSTRAINT 143

ments of the environment. "Saying that the will is
self-determined, . . . gives no idea at all, or rather
implies an absurdity, viz : that a determination, which
is an effect, takes place without any cause at all.
For, exclusive of everything that comes under the
denomination of motive, there is really nothing at all
left that can produce the determination. Let a
man use what words he pleases, he can have no
more conception how we can sometimes be deter-
mined by motives, and sometimes without any
motive, than he can have of a scale being sometimes
weighed down by weights, and sometimes by a kind
of substance that has no weight at all, which, what-
ever it be in itself, must, with respect to the scale
be nothing." '

The free-willist claims the ability to do or not to do
any action. He says, Of course I could, if I willed it.
The determinist replies, That is just it. You have
the ability to do any action, on one condition, namely,
if you will it. You have the ability to will it, on one
condition, namely, if you desire it. You have the
ability to desire it, on one condition, namely, if you
have an antecedent want which causes this desire.
And so on ad infinitum. The will must be conceived
simply as an intermediary agent between motives
and actions. The search from will to motive, from
motive to emotions, from emotions to feelings and
ideas, from these to sensations, leads us back into
eternity, in order to find the first cause. The free-
willist 's claim to be able to do any action on con-
dition that he will it is like a paralytic's claim to be

1 Priestley, "The Doctrine of Philosophical Necessity," 2d edition,
p. 43.

144 CRIMINAL RESPONSIBILITY

able to run on condition that he move his legs,
and able to move his legs on condition that his
nerves and muscles function, and able to make
his nerves and muscles function on some other con-
dition.

The consciousness of free choice is nothing more
than the consciousness of the competition among
motives. It depends upon the fact that in delibera-
tion two or more tendencies to action are present to
the mind at once. The consciousness of delibera-
tion, far from being a ground for assuming an arbi-
trary or undetermined power of volition, is exactly
what should be expected to accompany the process of
determination by various and conflicting motives.
If a body is pulled to the right with a force of twelve
pounds, and to the left with a force of eight, it moves
to the right. Imagine that body a mind aware of the
influences which act upon it; it will be conscious of
going in the direction of the strongest motive, that is,
the motive which, for whatever reason, appeals to
it most ; and in doing so it will, just because it is a
mind, be aware of deliberation and decision. The
power of choice is, therefore, not an unexplained
faculty incompatible with determination. Which
motive is selected is wholly determined, and is de-
pendent upon the character, which cannot choose
otherwise than it does. We cannot, therefore, say
that there was a freedom of choice in the sense that
we might have chosen otherwise. The freedom of
choice lies in the choosing. The feeling that, what-
ever we really did, we were free to do otherwise de-
pends on an illusion. A different action from the
actual one is conceivable: there is a logical alterna-

AND SOCIAL CONSTRAINT 145

tive to everything. But if the agent believes that
he, with his character and under his circumstances,
could have acted otherwise than he did, he confuses
the feeling of deliberation and choice with this merely
logical possibility.1

Since the discussion of the nature of will and voli-
tion concerns a question of psychology, it would be
well to consult some high psychological authority.
An extremely clear statement has been given by
Wundt, which may be abridged to the following:

"A volitional process is thus related to an emotion as a proc-
ess of a higher stage, in the same way that an emotion is
related to a feeling. Volitional act is the name of only one
part of the process, that part which distinguishes a volition
from an emotion. The way for the development of volitions
out of emotions is prepared by those emotions in connection
with which external pantomimetic expressive movements ap-
pear. These expressive movements appear chiefly at the end
of the process and generally hasten its completion. . . . The
fundamental psychological condition for volitional acts is,
therefore, the contrast between feelings, and the origin of the first
volitions is most probably in all cases to be traced back to un-
pleasurable feelings which arouse external movements, which
in turn produce contrasted pleasurable feelings. The seizing
of food to remove hunger, the struggle against enemies to ap-
pease the feeling of revenge, and other similar processes are
original volitional processes of this kind. The emotions
coming from sense-feelings, and the most widespread social
emotions such as love, hate, anger, and revenge, are thus, both
in men and animals, the common origin of will. . . .

"The richer the ideational and affective contents of experi-
ence, the greater the variety of the emotions and the wider the
sphere of volitions. There is no feeling or emotion that does
not in some way prepare for a volitional act, or at least have
some part in such a preparation. All feelings, even those of

1 Cf. Alexander, op. cit., pp. 339, 340.

146 CRIMINAL RESPONSIBILITY

a relatively indifferent character, contain in some degree an
effort towards or away from some end. . . .

"The single feelings in an emotion which closes with a voli-
tional act are usually far from being of equal importance.
Certain ones among them, together with their related ideas,
are prominent as those which are most important in preparing
for the act. Those combinations of ideas and feelings which
in our subjective consciousness are the immediate antece-
dents of the act, are called motives of volition. Every motive
may be divided into an ideational and an affective component.
The first we may call the moving reason, the second the im-
pelling feeling of action. When a beast of prey seizes his vic-
tim, the moving reason is the sight of the victim, the impelling
feeling may be either the unpleasurable feeling of hunger or
the race-hate aroused by the sight. The reason for a crim-
inal murder may be theft, removal of an enemy, or some such
idea, the impelling feeling the feeling of want, hate, revenge,
or envy. . . .

" The combination of a number of motives, that is, the com-
bination of a number of ideas and feelings which stand out
from the composite train of emotions to which they belong as
the ideas and feelings which determine the final discharge of
the act — this combination furnished the essential condition for
the development of will, and also for the discrimination of the
single forms of volitional action.

"The simplest case of volition is that in which a single feeling
in an emotion of suitable constitution, together with its accom-
panying idea, becomes a motive and brings the process to a
close through an appropriate external movement. Such vo-
litional processes determined by a single motive, may be
called simple volitions. The movements in which they ter-
minate are often designated impulsive acts

" When several feelings and ideas in the same emotion tend
to produce external action, and when those components of an
emotional train which have become motives tend at the same
time toward different external ends, whether related or antago-
nistic, then there arises out of the simple act a complex voli-
tional process. In order to distinguish this from a simple
volitional act, or impulsive act, we call it a voluntary act.

AND SOCIAL CONSTRAINT 147

" Voluntary and impulsive acts have in common the charac-
teristic of proceeding from single motives, or from complexes
of motives that have fused together and operate as a single un-
equivocal impulse. They differ in the fact that in voluntary
acts the decisive motive has risen to predominance from among
a number of simultaneous and antagonistic motives. When
a clearly perceptible strife between these antagonistic motives
precedes the act, we call the volition by the particular name
selective act, and the process preceding it we call a choice. The
predominance of one motive over other simultaneous motives
can be understood only when we presuppose a strife in every
case. But we perceive this strife now clearly, now obscurely,
and now not at all. Only in the first case can we speak of a
selective act in the proper sense. The distinction between or-
dinary voluntary acts and selective acts is by no means hard
and fast. In ordinary voluntary acts the psychical state is,
however, more like that in impulsive acts, and the difference
between such impulsive acts and selective acts is clearly rec-
ognizable.

"The psychical process immediately preceding the act,
in which process the final motive suddenly gains the ascen-
dency, is called in the case of voluntary acts resolution, in the
case of selective acts decision. . . .

" In the theories of volition given by older psychologists —
theories that very often cast their. shadows in the science of
to-day — we have a clear exhibition of the undeveloped state
of the methods of psychological observation. . . . Will was thus
limited to the voluntary and selective actions. Furthermore,
the one-sided consideration of the ideational components of
the motives led to a complete neglect of the development of
volitional acts from emotions, and the singular idea found ac-
ceptance that volitional acts are not the products of antecedent
motives and of psychical conditions which act upon these mo-
tives and bring one of them into the ascendency, but that voli-
tion is a process apart from the motives and independent of
them, a product of a metaphysical volitional faculty. This
faculty was, on the ground of the limitation of the concept
volition to voluntary acts, even defined as the choosing faculty
of the mind, or as the faculty for preferring one from among the
various motives that influence the mind. Thus, instead of de-

148 CRIMINAL RESPONSIBILITY

riving volition from its antecedent psychical conditions, only
the final result, namely, the volitional act, was used to build up
a general concept which was called will, and this class-con-
cept was treated in accordance with the faculty-theory as a
first cause from which all concrete volitional acts arise." l

A very strong testimony to the determination of
volitions is furnished by the results of abnormal psy-
chology. Many of the students of psychiatry have
reached the conclusion that all the troubles of the
mind have a basis in some disorder of the physical
organism, in some disturbance in the organization of
the nervous system. Every psychic reaction is de-
termined by physiological stimuli coming from out-
side under some form or other. Man's "actions"
are, strictly speaking, simply "reactions." He can
have no psychic manifestations without concomitant
cerebration, without physio-chemical modification of
the brain cells, without organic combustion. The
celebrated aphorism could be changed to say, in
truth, There is nothing in the mind which is not in the
brain, "nihil est in intellectu quod non sit in cerebro. "2
The organ of thought is the brain. Without brain,
there is no psychical functioning, — there are no sen-
sations, memories, ideas, or volitions. Whatever
affects the brain influences mental phenomena. It
is a matter of common observation how volitions are
influenced by the nervous system when under the
stimulation of tea, coffee, alcohol, or narcotics. Ab-
normal or pathological conditions increase the im-
pulsiveness of volitions and often turn them into
dangerous channels.

1 Wundt, "Outlines of Psychology," tr. Judd, 2d revised English
edition, pp. 201-213.

*Cf. Dubois, op. cit., p. 37; Ribot, "Les maladies de la persoa-
nalitey' p. 151.

AND SOCIAL CONSTRAINT 149

Ribot, one of the great authorities in abnormal
psychology, has made extensive investigations of
diseases of will, diseases of memory, and diseases of
personality. His studies of mental dissolutions are
psychologically very instructive. He finds disor-
ganization in the mental life always consequent
upon disorganization in the physical organism. He
regards conditions of consciousness as dependent on
conditions of the organism, hence the problems of
psychology as ultimately problems of biology.1 "It
is the physical organism, with the brain, its supreme
representation, that is the real personality. It con-
tains in itself the remains of all that we have been
and the possibilities of all that we shall be. In it
is implanted the individual character in its entirety,
with its active and passive aptitudes, its sympathies
and antipathies, its genius, its talent or its stupidity,
its virtues or its vices, its torpor or its activity. What
emerges of it to consciousness is but little in compar-
ison with what remains shrouded though neverthe-
less active. The conscious personality is never more
than a feeble part of the physical personality. . . .
The unity of the ego, in the psychological sense, is
therefore the cohesion, during a given time, of a cer-
tain number of clear states of consciousness, accom-
panied by others less clear and by a crowd of physio-
logical states which, without being accompanied by
consciousness, like their fellows, nevertheless act as
much as or more than they."2

1 Cf. Ribot, op. tit., p. 172.

2 Ibid., pp. 170-172. Compare the following statement by Gid-
dings. " Before many years, I believe we shall discover that at least
90 per cent, of human action is involuntary response to stimuli.
Like the summit of the ponderous iceberg, which only rears a small

150 CRIMINAL RESPONSIBILITY

In the conclusion of his study of diseases of will,
he says, regarding the freedom of the will : " Volition
is a final state of consciousness, which results from
the co-ordination more or less complex of a group of
states, conscious, sub-conscious, or unconscious
(purely physiological), which, united, translate them-
selves by an action or an inhibition. Co-ordina-
tion has for its principal factor character, which
is nothing but the psychical expression of an in-
dividual organism. It is character that gives to
co-ordination its unity, — not the abstract unity of a
mathematical point, but the concrete unity of an
agreement. The act by which this co-ordination is
made and affirmed is choice, founded on an affinity
of nature. The will which the interior psychologists
have so often observed, analyzed, and commented
on, is for us only a simple state of consciousness. It
is only an effect of that psycho-physiological process,
so often described, of which only a part enters into
consciousness under a form of deliberation. More-
over, it is the cause of nothing. The acts and motions
which follow it result directly from the tendencies,
feelings, perceptions and ideas which have ended in
co-ordinating themselves in the form of a choice. It
is from this group that all the efficacy comes. In
other words, and not to leave anything equivocal,
the psycho-physiological process of deliberation ends
partly in a state of consciousness, volition, and partly
in a group of movements or inhibitions. The 'I

portion of its bulk above the waves, the mind of man seems to
dominate and direct his activity; but in reality, his conduct is the
result of mighty forces little seen or guessed at upon the sur-
face." (Giddings, quoted in Parsons, " Responsibility for Crime,"
p. 68.)

AND SOCIAL CONSTRAINT 151

will' states a situation but does not constitute it.
... If any one persists in regarding the will as a
faculty, an entity, there is nothing but obscurity,
embarrassment, contradiction. He is ensnared with
a question badly put. If, on the contrary, he accepts
things as they are, he is at least freed from arti-
ficial difficulties. He does not have to ask, as did
Hume and so many others, How can an 'I will ' cause
my limbs to move? That is a mystery that needs
not to be explained, because it does not exist, — for
the will is not a cause in any degree. The secret of
how acts are produced should be looked for in the
natural tendency of feelings and ideas to translate
themselves into movements. We have here only an
extremely complicated case of the law of reflexes, in
which between the period of excitation and the period
of movement there appears an important psychical
fact — volition — showing that the first period ends
and the second begins." *

1 Ribot, "Les maladies de la volonte"," pp. 178-180.

CHAPTER VIII
THE NATURE OF MENTAL CAUSATION

The relation between cause and effect is nearly al-
ways thought of in the same way as a mechanical
transfer of motion from one body to another, and as
containing an element of external constraint. But
a thorough analysis of the causal relation shows that
the idea need have nothing to do with coercion. The
connection between cause and effect has no other
essential content than constant, regular succession of
events in time. No transfer of properties from one
element to another is necessary. There is no over-
mastery and compulsion of one element by another.
What alone takes place is a corresponding change of
elements, simply a "universal concomitance."

That is a false notion of the causal relation which
regards a cause as pushing an effect forward or using
force on it. All that we know of cause and effect is
a regular sequence of phenomena. The statement
that A and B act and react upon each other signifies
only that when A enters upon state a', B enters
upon state b', and conversely. A uniform concur-
rence of changes at different points of the world is
all that causation and reciprocal action mean.

Hume has, once for all, emptied the conception of
causation, for the scientific mind, of all content of
compulsion and mysterious transfer of qualities from
one object to another. He said that we can arrive

152

CRIMINAL RESPONSIBILITY 153

at a correct and precise idea of the nature of necessity
by carefully considering whence the notion of neces-
sity arises when we ascribe it to the operation of
natural phenomena. If the scenes of nature were
continually shifted in such a manner that no two
events ever bore any resemblance to each other, but
every object was entirely new and without any like-
ness to anything that had been seen before, we should
never conceive a connection between objects or attain
the least idea of causation. We might say, under
such conditions, that one thing followed another,
but never that one was produced by the other. The
relation of cause and effect would be utterly unknown.
Our idea of necessity and causation arises, therefore,
wholly from the uniformity observable in the opera-
tions of nature, where similar events are constantly
connected with similar antecedent events, so that the
mind is led to infer the one from the appearance of
the other. These two characteristics compose the
whole of that necessity which we constantly ascribe
to occurrences. We have no notion of causation or
necessity besides constant connection of events or
objects, and the consequent inference from one to the
other. A "cause" is that after which anything con-
stantly exists; and this is all that we know of it.
This constancy forms the very essence of necessity;
nor have we any other idea of the causal relation.1
There are certain striking differences in the kinds
of causation. Objects are usually divided into in-
organic (lifeless) and organic (living). The latter
are subdivided into plants and animals. Man stands
at the height of development of animal life. The

1 Cf. Hume, op. cit., pp. 84, 85, 100.

154 CRIMINAL RESPONSIBILITY

ways in which these different classes of objects ex-
emplify the law of causation are various. Corre-
sponding to the three distinctions between inorganic
bodies, plants, and animals, there are three diverse
modes of causation, namely, through causes in the
strictest sense of the word, through stimuli, and
through motives.1 The general nature of causation
is not in the least impaired in any of these modifica-
tions. A cause in the narrow sense of the word ap-
plies to changes in mechanical, physical, and chem-
ical bodies. A stimulus is our designation for a
cause that effects alteration and development of
plants and of vegetative functions of animal bodies.
Stimuli of this sort are light, air, nourishment, drugs,
fructification. A motive is that kind of cause which
effects changes in the action of animal beings through
influencing their intelligence. It obtains in the case
of those who have reached a stage of development
where numerous and complex needs make it difficult
to attain satisfaction on occasion, but render neces-
sary an intricate and diligent search for the means of
satisfaction, in other words, action that is not simp-
ly a reaction upon stimuli, but is caused by intel-
lectual perception, comprehension, deliberation, and
decision. On this account, in such beings, the sus-
ceptibility to stimuli is supplemented by a suscepti-
bility to motives, and by appropriate agency therefor,
namely, intellect or consciousness, in innumerable
grades of development, with its physical correlate,
the nerve-system and brain. An animal reacts in
response to feelings and ideas. When action takes
place as the result of perceptions, desires, ambitions,

1 Cf. Schopenhauer, "Ueber die Freiheit cjes Willens," S. 28-33.

AND SOCIAL CONSTRAINT 155

pleasures, pains, ideals, emotions, or any other con-
tent of consciousness, it is said to be caused by
motives.

Bearing in mind the various modes of causation,
we perceive that it obtains even though effects may
be very dissimilar to their causes. It is absurd to
expect causation to present the same phenomena in
the case of plants and animals as in the case of inor-
ganic bodies. Yet the advocates of free-will de-
mand a demonstration of the law of conservation
of energy and of other physical laws as governing
man's obedience to motives; and when this proof
is not forthcoming they claim that man is exempt
from the reign of law. In the mechanical world, if
a moving body strikes a body at rest, the first loses
as much motion as it imparts to the second, there is
a transfer of properties, the cause passing over into
the effect. But such a palpable relation between
antecedent and consequent becomes less and less
clear as action becomes more complex; for example,
when heat produces expansion, melting, hardening,
burning, combustion.

When we pass to causation through stimuli, the
relation between cause and effect becomes more
heterogeneous, incommensurable, unintelligible; for
example, in the influence upon plants of light, heat,
air, and soil, all of which affect vegetation in infi-
nitely complex ways; nevertheless the relation be-
tween cause and effect does not lose any of its con-
stancy and inevitableness. As necessarily as a free
body is set in motion when struck, seedcora ger-
minates under proper influences of soil, heat, moist-
ure, and air. The causes are more obscure; the

156 CRIMINAL RESPONSIBILITY

effects more unlike their causes; but the necessity of
the causal dependence is not in the least impaired.
When we pass to the sphere of motivation in animal
action, the relation between antecedent and conse-
quent is still more intricate. In the case of the
lower animals, however, as when the moth flies into
the flame, cause and effect are both apparent, and
nobody thinks of freedom of choice. But when the
motives work not immediately through sense percep-
tion, but through thought, through memory, reflec-
tion, and deliberation, over great distances of space
and time, there seems a temptation to regard the
law of causation as broken. Really, however, action
without cause is as impossible in the case of man as in
the case of a mechanical machine. If we could ob-
serve and know the nature of a particular person
and the kind and strength of the motives acting up-
on him, as thoroughly as we can observe and know
the length of beams, the diameter of wheels, and the
power of the motive force of a material machine, we
could calculate exactly how he would act. But be-
cause he is moved by abstract ideas, which are not
palpably connected with any immediately present
space or time, we permit ourselves to be misled and
to think that what he does could just as well not be
done, that his will decides of itself, without determin-
ant, and that each act is a first commencement of a
series started by that will. It is neither metaphor
nor hyperbole, but perfectly dry and liberal truth,
that as little as a billiard ball could move before re-
ceiving an impulsion, just so little could a man rise
from his chair without being impelled by some mo-
tive. When such a force acts upon him, however,

AND SOCIAL CONSTRAINT 157

his rising is as necessary and inevitable as the rolling
of the billiard ball after being struck. To expect that
any one should do something to which no interest
induces him is like expecting that a stick of wood
should move itself to me without being drawn by
some string. If these deterministic assertions meet
with stiff-necked contradiction, the easiest way of
showing their truth would be to have some one sud-
denly shout in an assemblage of people, "The house
is on fire!" then the contradictor would have to ad-
mit that a motive may be equally powerful in eject-
ing people from a house as any kind of mechanical
cause.1

If causation means only the regular harmony be-
tween the changes of elements, then it is plain that
it prevails in the mental world no less than in the
physical. We cannot easily detect uniformity here,
or formulate its laws; but it exists. Isolated or law-
less occurrences do not take place in the mental any
more than in the physical sphere. Each element is
definitely related to antecedent, simultaneous, and
succeeding elements. From the same antecedent,
under wholly identical inner and outer circumstances,
the same consequent invariably ensues. The same
idea, the same emotion, and the same volition result
from the same stimulus. Volitions follow determinate
antecedents with the same constancy and certainty as
physical effects follow their physical causes. Among
these antecedents are appetites, desires, aversions,
passions, habits, and inherited tendencies, in connec-
tion with external circumstances suitable to call these
internal incentives into action.

1 Cf. ibid., S. 36-65.

158 CRIMINAL RESPONSIBILITY

Psychical events take place in accordance with
law, that is, with regularity or uniformity. The
law of causation is not broken in the case of human
volitions. There is no uncaused occurrence. Every
event must have been preceded by others sufficient
to bring it about. Given the inducements to action
which are present to an individual's mind, and given
likewise the character of the individual, the manner
in which he will act could be unerringly foretold. If
we knew a person thoroughly and knew all the in-
centives that are acting upon him, we could predict
his conduct with as much certainty as we can foretell
an eclipse of the moon. ,

Nothing can happen in the mental realm without
some adequate cause to explain why it takes place in
this particular way and not in some other. The
writing of a poem, the forging of a note, the burglary
of a house, the assassination of a king, — all have their
adequate and determining causes as truly as have
the forming of a dewdrop, the fading of a flower, the
eruption of a volcano.

If a volition is regarded as an act of choosing, of
resisting certain impulses and of yielding to others,
is it proper to call it "free"? Such an act is always
determined by the attraction or repulsion with which
its idea is vested. If we resist or submit, we are
impelled to do so either by the motor tendencies of
sensation or by intellectual motives. We always
yield to an attraction or a repulsion. "It is the
liberty of a piece of iron attracted by a magnet."
Whatever we do we are always obeying sentiments
and ideas. Upon analysis, any action, whether the
devotion of a martyr or the most shocking crime,

AND SOCIAL CONSTRAINT 159

will be found to have been determined by some im-
perious influence. In the one case it is native nobility
of feeling, due to heredity and strengthened by edu-
cation, by the moral and religious convictions that
have been cherished in the family and in the social cir-
cle in which the individual has lived. In the other it
is the overwhelming impulse of brutal selfishness and
low passions. We always yield to an impulse which
by reason of our previous mentality holds us in its
power. We are all in bondage to our innate or ac-
quired mentality. One has a fatal instability of dis-
position. Another is wholly unable to control his
appetites. The alcoholic believes himself free, and
will say, "I am free to drink or not to drink." The
unfortunate fellow does not realize that he is the
slave of the demands of his diseased body which
cannot endure abstinence. We are all constantly re-
strained by internal barriers which suppress our free-
will as much as a wall or a policeman would restrain
our bodily liberty. Our wishes and decisions are all
determined. When we follow our wants, we do not
think of "free-will," but realize that we are then
slaves to our tastes and appetites. It is when we
obey intellectual motives and moral ideas that we
pretend to be " free." And we call him a strong man
who always bases his conduct on rational principles
and philosophical convictions. But as a matter of
fact, he also is determined. He simply has a clear
consciousness of the way he wants to go. He finds
attractions along certain roads where other people
find none. His course is decided by a distinct idea
of his end and aim. His head and heart are to-
gether. His ideas and his feelings agree. And his

160 CRIMINAL RESPONSIBILITY

will drops passively into the path which sentiment
and reason have worn for it.1

The causation of volitional phenomena runs back
in an unending series. Indeed, will belongs to those
forms of psychical causation, the connections of
which we can most easily follow. Not only the im-
mediate causes in the motives are apparent, but also
the origin and diverse conditions of the individual
and general social development. An intentional act,
which takes place as the result of forethought and
deliberation, we can retrace in circumstances extend-
ing back into the earliest history of the agent. We
may, indeed, discover some of the elements in inher-
ited qualities of the family or tribe.2

Can any one really believe that the will is uncon-
ditioned and out of causal connection with other
elements of reality or that it was produced of itself?
Must it not be said to be in relation with other things
on which it depends, and by which it has been formed ?
"A man is a psycho-physical organism, with a certain
body, a certain system of organs, certain impulses,
certain sensibility, certain intelligence, and certain
will. Was his beginning without cause, a result of
his own free choice? Hardly; he was conceived and
produced by parents, whom he resembles in body and
in soul, inheriting their temperament, their desires,
their sensuous-intellectual powers, as well as their
bodily characteristics. He receives all the physicho-
spiritual qualities of his ancestors, as his natural en-
dowment. His sex, too, which exercises such a de-
cisive influence upon his entire life, is determined, by

1 Cf. Dubois, op. tit, pp. 50-57.

»C/. Wundt, "Ethik," Bd. II, S. 82-86.

AND SOCIAL CONSTRAINT 161

what causes we do not know, yet no one will claim
that it is the result of his own choice. Hence noth-
ing in the origin of man indicates that he constitutes
an exempt territory in the kingdom of nature, and
is not subject to her laws. These innate predisposi-
tions or tendencies are then developed under the de-
termining influences of environment, of natural and,
above all, human environment. The child is edu-
cated by the family in the form of life peculiar to his
people. He acquires their language, and with the
language a more or less complete system of concepts
and judgments. He is educated into the customs
and practices of his country, by which the actions and
judgments of most persons are governed during their
entire lives. He is sent to school, and there obtains
the general culture of the age; he is taken into the
church, where he receives further training, which,
positively or negatively, exercises a permanent in-
fluence upon his inner life. When at last he leaves
the home and the school, it is only to be sub-
jected to the influence of a new educative force, —
society. He belongs to a certain social class by de-
scent and, as a rule, for life. Society works upon
him incessantly, telling him in words and in deeds
what is right or wrong, what is proper or im-
proper, what is attractive or repulsive. It assigns
to him his tasks, by example and by command.
In all these ways his whole life, with all its activities,
is determined. . . . There seems to be no break in
the chain: nation and age, parents and teachers,
environment and society, decide the predisposition
and development, rank and life-problems, of each
individual human being. He is the product of the

162 CRIMINAL RESPONSIBILITY

collective body from which he springs. Just as the
twig on a tree does not owe its form and function to
its will, but to the whole body in which it grows, so
a man does not exist prior to himself, as it were, and
choose his will, his nature, and his lot in life by a de-
cision of his will. He comes into the world and acts
in the world as a member of the collective body.
And as a part of this people his life forms a part of
the total historical life of humanity, and, finally, of
universal nature." l

In view of such facts as these we may be led to
agree with Spinoza that "The soul acts according to
fixed laws, and is as it were an immaterial automa-
ton." 2 " In the mind there is no absolute or free-will ;
but the mind is determined to wish this or that by a
cause, which has also been determined by another
cause, and this last by another cause, and so on to
infinity." s "Most writers on the emotions and on
human conduct seem to be treating rather of mattery
outside nature than of natural phenomena following
nature's general laws. They appear to conceive man
to be situated in nature as a kingdom within a king-
dom: for they, believe that he disturbs rather than
follows nature's order, that he has absolute control
over his actions, and that he is determined solely by
himself. . . . Nature's laws and ordinances, whereby
all things come to pass and change from one form to
another, are everywhere and always the same; so
that there should be one and the same method of
understanding the nature of all things whatsoever,

1 Paulsen, "System der Ethik," Bd. I, S. 448-450.

"Spinoza, "On the Improvement of the Understanding," p. 32.

•Spinoza, "Ethics," tr. Elwes, p. 119.

AND SOCIAL CONSTRAINT 163

namely, through nature's universal laws and rules.
Thus the passions of hatred, anger, envy, and so on,
considered in themselves, follow from this same neces-
sity and efficacy of nature; they answer to certain
definite causes, through which they are understood.
... I shall consider human actions and desires in
exactly the same manner, as though I were concerned
with lines, planes, and solids." * "An infant believes
that of its own free will it desires milk, an angry child
believes that it freely desires vengeance, a timid child
believes that it freely desires to run away; further,
a drunken man believes that he utters from the free
decision of his mind words which, when he is sober,
he would willingly have withheld : thus, too, a deliri-
ous man, a garrulous woman, a child, and others of
like complexion, believe that they speak from the free
decision of their mind, when they are in reality un-
able to restrain their impulse to talk. Experience
teaches us no less clearly than reason, that men be-
lieve themselves to be free, simply because they are
conscious of their actions, and unconscious of the
causes whereby those actions are determined." 2

The formula used by determinists is this: The ac-
tion of man constantly proceeds with necessity from
two factors — his character and the motives which
come from the environment. Each of these factors
is under the guidance of causality and is strictly neces-
sitated. The germ of the character is innate; its
development is conditioned by the experiences of
life. The motives that act on man are introduced
with inevitableness by the absolutely fixed course of
the world. Any action, then, is the necessary result

1 Ibid., pp. 128, 129. * Ibid., p. 134.

164 CRIMINAL RESPONSIBILITY

of a determinate character in contact with determin-
ate circumstances. Let us notice somewhat minutely
the way in which will is influenced. "The will of
animal creatures may be said to be set in motion in
two different ways: either by motivation or by in-
stinct; thus from without or from within; by an ex-
ternal occasion, or by an internal tendency. . . .
But, more closely considered, the contrast between
the two is not so sharp, indeed ultimately it runs back
into a difference of degree. That is to say, the mo-
tive also only acts under the assumption of an inner
tendency, i. e., a definite quality of will which is
called its character. The motive in each case only
gives to this a definite direction — individualizes it
for the concrete case. So also instinct, although a
definite tendency of the will, does not act, like a
spring, wholly from within ; but it, too, waits for some
external circumstance necessarily demanded for its
action, which at least determines the time of its
manifestation; such is, for the migrating bird, the
season of the year; for the bird that builds its nest,
the fact of pregnancy and the presence of the material
for the nest; for the bee it is, for the beginning of the
structure, the basket or the hollow tree, and for the
following work many individually appearing cir-
cumstances. ... It follows from this exposition
that being determined by motives presupposes a
certain breadth of the sphere of knowledge, and con-
sequently a more fully developed intellect : therefore
it is peculiar to the higher animals, quite pre-emi-
nently, however, to man; while being determined by
instinct demands only as much intellect as is neces-
sary to apprehend the one quite specially determined

AND SOCIAL CONSTRAINT 165

motive, which alone and exclusively becomes the
occasion for the manifestation of the instinct. On
this account it is found in the case of an exceedingly
limited sphere of knowledge, and consequently, as a
rule, and in the highest degree, only in animals of the
lower classes, especially insects. Since, accordingly,
the actions of these animals require only an exceed-
ingly simple and small motivation from without, the
medium of this, thus the intellect or brain, is very
slightly developed in them, and their outward actions
are for the most part under the same guidance as
the inner, that is, they follow upon mere stimuli as
physiological functions of the ganglion system. This
is, then, in their case, exceedingly developed. . . .
According to all this, instinct and action through
mere motivation, stand in a certain antagonism, in
consequence of which the former has its maximum in
insects, and the latter in man, and the actuation of
other animals lies between the two in manifold grada-
tions according as in each the cerebral or the ganglion
system is preponderatingly developed." ■

One naturally asks, "If this is the real nature of
will and volition, where is the difference between
man's will and the will of an animal?" The reply
is that animals are moved to action by the im-
pulses and perceptions of the moment. The sight of
the prey or of the foe immediately produces appro-
priate movements of pursuit or flight. Even the
most highly developed animals possess but the rudi-
ments of hesitation, deliberation, and choice, which
processes are characteristic of man. He decides on

•Schopenhauer, "Die Welt als Wille und Vorstellung," Bd. II,
S. 390/.

166 CRIMINAL RESPONSIBILITY

his conduct after comparing various possible courses
of action with the ultimate aims of his individual and
social life. He is not determined by impulses, but by
ideas of ends. He views his entire life as a unity,
and chooses his particular acts according to their
relation thereto. Animal life is made up of more or
less isolated or disconnected functions; while human
life is a self-conscious unity which determines the
individual moments as demanded by the purpose of
the whole. Each impelling thought, as it presents
itself, is subordinated to the larger conception of life's
total meaning and purpose. For action of the reflex
type there is substituted action which is the result
of deliberate choice. Instead of the coercive guid-
ance of the immediate idea, there is the conduct that
comes from a reflective consideration of the compar-
ative claims of the many ideas which appear on the
field of consciousness and contend for the mastery.
Man can ponder the various courses to which he is
enticed; he can compare and criticise the results of
following each competing impulse; he can study the
entire situation; he can contrast the conceived future
with his present and his past ; he can test it by the
touchstone of his prevailing aspirations, his dominant
aims in life, his permanent and larger and deeper self.
He can shape his life in accordance with a single cen-
tral purpose which governs its every act. Thus man
need not be, like the animal, simply the creature of
impulse, even of that organized impulse which we call
instinct. He need not live merely in the immediate
present and in the immediate future. He is inde-
pendent of what is directly present in space and time,
the sense impressions of the moment. He carries

AND SOCIAL CONSTRAINT 167

around in his head abstract ideas and universal no-
tions, which give to his action the character of de-
liberate reflection and purposiveness, and lay the basis
for language, remembrance of the past, foresight of
the future, co-operation with other men in politics,
science, and art. He can " look before and after," can
forecast remote as well as near events, and can act un-
der the guidance of a far-reaching survey of his life.1
This is all there is of man's so-called freedom.
He differs from the beast, not in having the power of
free-will, the exercise of undetermined choice, but in
having a more highly developed consciousness. He
can grasp a greater number of facts at once, can keep
them before his deliberation for a longer time, can
form abstract ideas and can reason about them, can
remember past experiences better, can organize his
experiences into a self-conscious whole, can calculate
the probable lines of sequence farther, and can act
with purposive foresight. In short, his reason is more
discursive. But at the time of action, he does, and
can do, only one thing; namely, that which seems
to him at the moment best, in the light which he then
has. Such expressions as "I could have decided
otherwise if I had wanted to," are utterly meaning-
less. It is this ' ' wanting to ' ' that is in question. Of
course you could have chosen some other course if
you had so desired. But the point is that with your
precise nature in that exact condition of things there
was but one desire possible. Before you could have
decided differently, your character or the circum-
stances would have had to be different. In short,

1 Cf. Paulsen, op. cit., Bd. I, S. 460, 461; Seth, op. cit., pp. 44-46;
Schopenhauer, "Ueber die Freiheit des Willens," S. 33-36,

168 CRIMINAL RESPONSIBILITY

other antecedents must have been present than those
which existed.

Man's so-called growth in freedom is really but
development of wisdom in judging. A man gains
greater skill in canvassing all the motives to action.
His power of discernment enlarges. He can look
farther into the future, can hold more alternatives
before his mind at once, and can estimate more cor-
rectly their lines of sequence. Instead of calling it
the faculty to choose more wisely, we could just as
well call it the ability to see and understand more
clearly, the power of more discursive reason. At
the moment when a man must make up his mind,
however, he always decides as it seems best to him
at the time.

In agreement with these views, whenever we wish
to influence the acting of another person we always
try to do it by changing his knowledge. The intel-
lect is the medium through which motives affect the
character, which is the real kernel of man. Only so
far as understanding correctly accomplishes its func-
tion of presenting to the inner self the inducements
in their true nature, that is, as they are in the actual
world, can the man decide in accordance with his
real nature, and express himself without interference.
In this case man is intellectually free, that is to say,
his action is the pure result of a reaction of his char-
acter upon motives which are in agreement with the
facts of the world. The ability to direct his behavior
by means of his intelligence is the only "freedom"
that a man has. The fact that his conduct varies
with and conforms to his judgment indicates that he
controls his own actions.

AND SOCIAL CONSTRAINT 169

The fact that man is moved by abstract thoughts
instead of by sense-perceptions does not imply a
breach in the law of causation. Thoughts are mo-
tives, the same as are perceptions; and all motives
are causes, entailing necessity. Man can consider,
can reflect, can deliberate; and is in so far "free"
from coercion by the immediate perception; but
determination by considerations, reflections, and
deliberations is no less strict and inevitable than
determination by perceptions. Whether an object
is pulled by a heavy rope or by a fine wire does not
alter the stringency of the causation. Whether a
message is sent to its destination directly, or passes
through many relay stations, makes no difference
in the absolute relation of cause and effect. Whether
the message is transmitted by horse, by railroad, by
telephone, or by wireless telegraphy, the effect is
absolutely dependent upon its causes. Similarly,
although the modes of motivation are different in the
cases of man and animal, the necessity and inevitable-
ness of causal dependence are precisely the same in
both. An abstract thought is a causal determinant
of the will no less than is an immediate sense-percep-
tion; and ultimately the abstract thought runs back
to some external impression or sensation. The con-
nection is simply long-drawn-out or broken up into
many subdivisions. Instead of the effect being
joined to the cause at close range both in space and
time, it is bound to it at great distance and over a long
period of time, and through the mediation of concep-
tions and thoughts in a long chain. This is because
of the constitution of the organ of thought, the brain
or consciousness, which permits influences to be taken

170 CRIMINAL RESPONSIBILITY

up and carried through complicated stages and de-
tours. But all this does not in the least impair
causality and the inevitable dependence of effects on
causes.

A question naturally arises concerning the dif-
ference between the normal man, who is commonly
regarded as a responsible agent, and the abnormal
man, the lunatic, the somnambulist, or the hypno-
tized person. The volitions and actions of both are
determined. What discrimination can be made in
the kinds of determination? In the case of the nor-
mal person, there is self-control. He is conscious of
the various motives to action ; and the victory of one
is obtained only after due competition with the others.
In the case of the abnormal person, however, there
is defective self-control, in which motives do not at-
tain full development either because consciousness
is temporarily impeded or because it is permanently
incapable of motivation. For example, even though
a somnambulist or a hypnotized person may follow
motives, he differs from the normal man in that only
one motive is present in consciousness and acts com-
pellingly because other motives are not there to coun-
teract it. His action cannot be called deliberate
and voluntary. Even though a lunatic may balance
motives' against each other and act with thoughtful
deliberation, he nevertheless differs from the normal
man in not having a developed, reflective self-
consciousness. He has not the normal conscious-
ness of his own individuality, with its previous ex-
periences co-ordinated into a unitary self. And he
acts not with the normal consciousness of the signifi-
cance which his acts have for his own purposes and

AND SOCIAL CONSTRAINT 171

character. His behavior is not expressive of an inte-
grated personality. Such as these are the only dif-
ferences between the acts of the abnormal person
and those of the normal person. It is improper to
claim that in the one case they are determined while
in the other they are not. "Freedom" in this sense
exists in neither instance. Efficient causes determine
the volitions and acts of both the normal and the
abnormal ; but in the case of the abnormal the causa-
tion is not of the highest psychical order, develop-
ment, or refinement.

Mill's refutation of some of the current objections
to the doctrine of mental causation is well worth
sketching. A free-willist asks, "Are there no such
things as wilfulness, caprice, and obstinacy among
men?" The determinist answers, "These things
which you mention are themselves tendencies, fatal
tendencies, to act or not to act. They cannot be
used to show man's freedom from determination by
motives." The free-willist further protests, "A de-
termination of the will is made by the man and not
by the motive." The determinist replies, "The
man was induced by some motive to that determina-
tion. His specific volition was not without a cause.
Suppose the sum of influences (incitements and in-
clinations) to volition A equal to 12, and the sum of
influences to counter volition B equal to 8, — can we
conceive that the determination of volition A should
not be necessary? He can only conceive the volition
B to take place by supposing that the man creates
(calls from non-existence into existence) a certain
supplement of influences. But this creation is in-
conceivable. Yet were it not so, we should still have

172 CRIMINAL RESPONSIBILITY

to suppose some cause by which the man is deter-
mined to it. We can never escape necessity. If
he is led to prefer innocence to the satisfaction of a
particular desire, through an estimate of the relative
worth of the two, can this estimate, while unchanged,
leave him at liberty to choose the gratification in
preference to innocence?" The free-willist objects
further, "You say that the will is governed by the
strongest motive; but I only know the strength of
motives in relation to the will by the test of ultimate
prevalence; so that this means no more than that
the prevailing motive prevails." The determinist re-
plies: "There are two flaws in this argument. First,
those who say that the will obeys the strongest mo-
tive, do not mean the motive which is strongest in
relation to the will, or in other words, that the will
follows what it does follow. They mean the motive
which is strongest in relation to pain and pleasure;
since a motive, being a desire or aversion, is propor-
tional to the pleasantness, as conceived by us, of the
thing desired, or the painfulness of the thing shunned.
And when what was at first a direct impulse toward
pleasure, or recoil from pain, has passed into a habit
or a fixed purpose, then the strength of the motive
means the completeness and promptitude of the as-
sociation which has been formed between an idea and
an outward act. This is the first answer. The sec-
ond is, that even supposing there were no test of the
strength of motives but their effect on the will, the
proposition that the will follows the strongest motive
would not be identical and unmeaning. We say,
without absurdity, that if two weights are placed in
opposite scales, the heavier will lift the other up;

AND SOCIAL CONSTRAINT 173

yet we mean nothing by the heavier, except the
weight which will lift up the other. The proposition,
nevertheless, is not unmeaning, for it signifies that in
many or most cases there is a heavier, and that this
is always the same one, not one or the other indiffer-
ently. In like manner, even if the strongest motive
meant only the one which prevails, yet if there is a
prevailing one — if, all other antecedents being the
same, the motive which prevails to-day will prevail
to-morrow and every subsequent day, the free-will
theory is lost." ■

Mill's conception of the nature of motives needs
to be completed and strengthened by the develop-
ments of physiological psychology. Some of the ele-
ments that enter into, and add their strength to, the
motive that determines action may be below the
threshold of consciousness. We know only partially
the multitude of factors of which volition and action
are the results. We are not aware of the force of
each constituent element, the degree of its intensity,
the part it plays in the origin of the act. Many of the
factors are purely physiological, and lead to reflex
movements without passing through consciousness.
The field of the unconscious is greater and more im-
portant than that of the conscious. In consciousness
there appear only a few of the manifestations — sen-
sations, feelings, ideas — of the cerebral activity which
determines action. In every psychical process some
of the links escape us. The greater part of the phe-
nomena take place without our being aware of them.
Stimuli of which we have no knowledge may act as
excitants upon centres of cerebral activity without

1 Cf. Mill, op. cit., pp. 574-578; 604, 605.

174 CRIMINAL RESPONSIBILITY

our knowing it. These centres then influence action,
and thus become the unknown point of departure for
movements of which we may or may not become con-
scious. In view of our ignorance of the subtle physi-
ological processes which influence action without ap-
pearing in consciousness, there can be absolutely no
proof that volition and action arise "freely," that is,
without causal dependence upon antecedent mental
and physiological phenomena.

The free-willist, as we saw in the quotations from
James and others, claims the possibility of dual
choices, that is, that in the moment of choice, it may
fall out in any one of different ways. Now, the de-
terminist attempts to prove that this claim is an
absurdity. The hypothesis rests on an imagined ex-
periment. "Suppose, it is said that a moral agent is
set back for a second time into the critical moment
of choice, — say, e. g., that Eve is placed again in
Paradise and given another chance, — in that case,
even if the circumstances are exactly repeated, it will
be possible for her to resist the temptation, instead of
yielding to it. Not, I submit, if we are thorough with
the experiment. Do but really repeat the circum-
stances; make it the same day and hour, the same
scene and the same tempter. Above all, let it be the
same Eve. Let just those innate proclivities which
operated before operate again; let them be played
upon by solicitations which exactly repeat the pre-
vious ones, — the same in number and hue, the same
in intensity and power and degree of prevalence, —
and the action will be the same, inevitably. In-
evitably, because by the time the ' circumstances, '
outward and inward, are fully repeated, the act is

AND SOCIAL CONSTRAINT 175

already done. That the issue should be different in
the two instances is unthinkable. It splits itself on
an impossibility, the impossibility of drawing any
line between the mind and the act which comes out
of it. The nature of mind does not permit of such a
thing. Mind is what it does, and is nothing else.
The being and the doing are inseparable. To do a
different thing is to be so far a different person. To
say with Professor James, that the ego which elected
to follow one path could, under an exact repetition of
the situation, choose to follow another, means that
the same ego could be two different beings at once.
Freedom which depends on this is not merely con-
tradictory to the faith of Science; it is incompatible
with the very conditions of thought. The ordinary
man's assertion, then, that in the same circumstances
he 'could have done other than he did' crumbles
away when we try to think it." *

Acts could not have been done by a man in any
manner or in any order other than that which has in
fact obtained. All the deeds of a man necessarily
follow from his character, and by that character are
conditioned to exist in a particular way. If they
could have been different, his personality would
also have had to be able to be other than it was.
Before different behavior could have become real,
his diverse nature would have had to be real; or,
in other words, he would have had to have two or
more distinct natures. The statement "He could
have acted otherwise" means really "He could have

1 Scott, " Post-Kantian Idealism and the Question of Moral Re-
sponsibility," in International Journal of Ethics, April, 1910, pp.
331. 332.

176 CRIMINAL RESPONSIBILITY

been different from what he was." This is because
man's will is his real self, the kernel of his being.
He is what he wills to be, and wills to be what he is.
To ask him whether he could have willed otherwise
than he willed, is to ask him whether he could have
been another person than himself.

"In accordance with the absolutely universal
validity of the law of causality, the conduct or the
action of all existences in this world is always strictly
necessitated by the causes which in each case call
it forth. It makes no difference whether such an
action has been occasioned by causes in the strictest
sense of the word, or by stimuli, or finally by mo-
tives, for these differences refer only to the grade
of the susceptibility of the different kinds of exist-
ences. The law of causality knows no exception;
but everything from the movement of a mote in a
sunbeam to the most carefully deliberated action of
man, is subject to it with equal strictness. There-
fore, in the whole course of the world, neither could
a mote in a sunbeam describe any other line in its
flight than it has described, nor a man act any other
way than he has acted; and no truth is more certain
than this, that all that happens, be it small or great,
happens with absolute necessity. Consequently, at
every given moment of time, the whole condition of
all things is firmly and precisely determined by the
condition which has just preceded it, and so it is with
the stream of time back to infinity and on to in-
finity." *

1 Schopenhauer, "Die Welt als Wille und Vorstellung," Bd. II,
S. 362 #

CHAPTER IX

CONCEPTION OF FREEDOM SYNONYMOUS
WITH IGNORANCE OF CAUSES

When I pick up my pencil, no one can predict with
absolute certainty what I shall do with it. WTiat fol-
lows is to all appearances a new event quite independ-
ent of any which preceded it. Whatever I do with
it, a sequence of acts seems to start in my present
volition. No other person can positively foretell
what I shall do, for the contents of my mind are not
objectively perceived by any one. Nevertheless, if
the processes that take place in the mind could be
observed, they would be found to be routine changes
as much as any in the physical world. In other
words, a present exercise of will is not a first cause,
but is merely an intermediate link in a chain of
events following each other in a regular way.

As a rule, our ability to retrace a series of events
terminates when we get back to the mind of the per-
son who was the actor. We cannot track with cer-
tainty the successive mental steps that led to the par-
ticular decision. But this does not justify us in
concluding that there was no regular succession of
psychical occurrences, or that the choice did not
follow as the necessary product of a special disposi-
tion, which was in turn the result of certain ideas,
purposes, desires, passions; while these were the out-
come of determinate education, experiences, inherit-

177

178 CRIMINAL RESPONSIBILITY

ance; and these were connected with race, class,
climate, and so on. Individual acts of will are to be
regarded as secondary causes in a long chain of
sequent events, as stages in a regular succession of
occurrences. Will is thus not a primary and arbi-
trary cause. "

Every act is the necessary product of two factors,
— the inner tendency or force which here expresses
itself, and the particular environmental occasion
which calls forth that expression. Consequently,
every act could be definitely calculated and predicted,
if character and environment could be thoroughly
known, — if, on the one hand, all the forces of the cir-
cumstances could be measured, and if, on the other
hand, all the subtle influences of disposition, the vari-
ous tendencies and counter-tendencies to action,
both those that lie in consciousness and those that lie
beneath the threshold of consciousness, could be dis-
covered. But such thorough knowledge is impos-
sible. Character is the total result of all past ex-
periences, and is undergoing continual modification
in current experiences. We could not have a pre-
cise knowledge of it unless we could trace back and
estimate all the diverse influences both of inherited
tendencies and of individual education. The endsA
and purposes which a man unalterably seeks are \
necessarily fixed by his nature; the means or instru-
ments which he uses in this search are inevitably de-
termined by external conditions and by his concep-
tion of them, which depends on his intelligence and
education. As the unavoidable effect of all these
determining causes there follow his every act and the
entire r61e which he plays in the world. We should

AND SOCIAL CONSTRAINT 179

recognize that our inability to prophesy behavior
results from our being unaware of the past causes
which have formed the character and of the present
forces now influencing it. This explanation is more
satisfactory than recourse to the mysterious freedom
of will.

Spinoza declared that our ascription of "freedom"
to persons was due to unconsciousness of the deter-
mining causes. "Men think themselves free inas-
much as they are conscious of their volitions and de-
sires, and never even dream, in their ignorance, of
the causes which have disposed them so to wish and
desire. . . . Their idea of freedom, therefore, is sim-
ply their ignorance of any cause for their actions. As
for their saying that human actions depend on the
will, this is a mere phrase without any idea to corre-
spond thereto. What the will is, and how it moves
the body, they none of them know. ... A thing is
called necessary either in respect to its essence or in
respect to its cause; for the existence of a thing neces-
sarily follows, either from its essence and definition,
or from a given efficient cause. For similar reasons
a thing is said to be impossible; namely, inasmuch
as its essence or definition involves a contradiction,
or because no external cause is granted, which is
conditioned to produce such an effect; but a thing
can in no respect be called contingent, save in rela-
tion to the imperfection of our knowledge. A thing
of which we do not know whether the essence does
or does not involve a contradiction, or of which,
knowing that it does not involve a contradiction, we
are still in doubt concerning the existence, because
the order of causes escapes us, — such a thing, I say,

180 CRIMINAL RESPONSIBILITY

cannot appear to us either necessary or impossible.
Wherefore we call it contingent or possible." ■

The uninstructed take things according to their
first appearance, and attribute the uncertainty of
events to a "freedom" in the agents which involves
capriciousness in action. The instructed, however,
have learned that there are very many principles in
nature which are hidden from ready perception, and
that contrariety of events may proceed, not from
caprice in the cause, but from the unperceived opera-
tion of contrary causes. Thus, for instance, the phy-
sician when the usual symptoms of health or sick-
ness disappoint his expectations, and medicines do
not operate with their usual effects, is not greatly sur-
prised at the matter, and is never tempted to deny, in
general, the uniformity and necessity of those prin-
ciples by which the human body is regulated. He
knows that the physical organism is very complex
and contains many forces beyond easy discovery, and
that it must often appear uncertain in its operations.
He therefore does not regard any irregular events as
proof that the laws of nature are not observed there-
in. In like manner, the moral philosopher must
apply the same reasoning to the actions and volitions
of the mind. The most unexpected resolutions and
behavior may be accounted for when the particular
circumstances of character and situation are dis-
covered. A person of affable disposition gives a
peevish answer: the disturbing cause is found in a
tooth-ache or a bad dinner. A sluggish fellow is
seen in rapid gait: he has just heard news of sudden
good fortune. Thus seeming irregularities do not

1 Spinoza, op. cit., pp. 71, 75, 108.

AND SOCIAL CONSTRAINT 181

really indicate breaches in the uniform observance
of law.1

The determinist maintains that occurrences in the
psychical world take place according to natural laws
and with the same necessity as occurrences in the
physical world. The reason that they cannot be ac-
curately calculated and foretold is simply owing to
their great complexity. The same holds true of
many processes in the physical world, for example,
in the physiological determination of sex in the fetus.
A perfect intellect, one that comprehended all the
antecedent facts, would understand the volitions and
actions of men as perfectly as the movements of the
planets.

When the free-willist calls attention to the fact that
the calculations of statesmen, economists, and finan-
ciers are always attended with great uncertainty, we
must not let him force the conclusion that this doubt-
fulness is due to free-will; we must attribute the
cause to its real source, namely, insufficient knowl-
edge of the influences in operation. A similar igno-
rance of the causes at work entails the same uncer-
tainty concerning the physical phenomena of wind,
clouds, rain, hail, and storms; but this vagueness
does not lead us to regard these things as the results
either of chance or freedom. As a matter of fact,
prevision here is no more accurate than in the domain
of economics. The coming of a cyclone cannot be
foretold as long in advance as the coming of a com-
mercial crisis. The varying depth of water in a river
and the changing rate of the current cannot be pre-
dicted with as much certainty as the trips of the rail-

1 Cf. Hume, op. cit., pp. 89-91.

182 CRIMINAL RESPONSIBILITY

road trains along the banks of the stream, although
the waters are regulated by the forces of nature while
the trains are directed by men. If man should ever
become infinitely wise, his prevision of economic
events would be as certain as his forecast of astro-
nomical changes.1

1 Qf. Gide, "Principles of Political Economy," pp. 5-8.

CHAPTER X

DETERMINISM ASSUMED IN DAILY LIFE AND
IN SCIENTIFIC PROCEDURE

In all our relations with others in daily life we are
obliged to assume that individual acts of will fit in
with and are determined by a larger whole. We sim-
ply cannot believe that a particular nature under cer-
tain conditions will respond to a definite stimulus
sometimes one way, sometimes other ways. We are
forced to count on uniform conduct; and if any un-
expected behavior takes place, we look for the cause
that produced the alteration, — some unusual expe-
rience, some sickness, some temporary indisposition,
some reverse of fortune. We always assume regu-
larity, and never suppose uncaused or unmotived
variations.1

Men are so dependent upon one another that
scarcely any action of any man is entirely complete
in itself. Hardly any operation takes place without
some reference to the operations of others, which are
requisite before the intention of the agent is fully
realized. The poorest farm laborer looks for the pro-
tection of the authorities to render secure the fruits of
his labor. He expects that when he takes his product
to town to sell, he will find purchasers. He counts
on being able to obtain from others certain commodi-
ties which he needs and is able to pay for. In the

1 Cf. Paulsen, op. cit., Bd. I, S. 448.
183

184 CRIMINAL RESPONSIBILITY

dealings of commercial life, where intercourse is so
extensive and complicated, each man relies on the
co-operation of a great many other men, firmly be-
lieving that these "voluntary agents" are going to
continue in their behavior the same as he has always
found them. The manufacturer employs the ser-
vices of many very different men and women, but
he counts upon, and places his dependence upon, that
labor in the same way as upon the labor of the ma-
chinery. The thoroughness with which, in our
thoughts and expectations, we link the operations of
human beings with the action of natural forces is well
illustrated in the case of a prisoner. A prisoner is
convinced of the impossibility of escape as well by
the obstinate moral nature of the jailer as by the
material strength of the walls and bars. Indeed, in
an attempt at freedom, he prefers to work upon the
stone and iron. If sentenced to die, he foresees the
certainty of his death as much in the constancy and
fidelity of the officials as in the mechanical action of
the gallows or electric chair. His mind feels no
difference in ^passing from the operations of the hu-
man voluntary agents to the operations of the me-
chanical agents. He is no less positive of the future
event than if the whole series of incidents leading up
to it were cemented together by what we call physical
necessity. In many instances we can be as confident
of the acts of human beings as of the action of natural
forces. We may feel as sure that a man will not put
his hand into the fire and hold it there until it be con-
sumed as that if he jumped out of the window and
met no support he would not remain suspended in
the air. A man who dropped a roll of money on a

AND SOCIAL CONSTRAINT 185

crowded thoroughfare would as soon expect it to rise
and fly away like a balloon as to count on its remain-
ing there. If no uniformity in human actions ex-
isted, and if every event were irregular and anoma-
lous, it would be impossible to make generalizations
concerning human nature; and experience and re-
flection could never be of any service.1

Scientific procedure is equally dependent upon be-
lief in determinism. Without this belief there would
be possible no psychology and no mental science
whatever. To give it up would be to offend against
that law of reason according to which we always
posit a cause for the caused, and regard this in turn
as produced by some antecedent cause.3

There is no part of learning to which determinism
is not essential. History would be an impossible
science if we could not depend on the veracity of the
historians. Political science could not exist if laws
and forms of government had not a uniform influence
upon society. Moral science would be out of the
question if particular characters did not react upon
stimuli in certain definite ways. Literary criticism
would be vain if the sentiments and conduct of the
actors could not be declared either natural or un-
natural in such individuals under such conditions.
All science acknowledges the doctrine of necessity
and the legitimacy of inference from character and
circumstances to conduct.

In short, science means simply and only associat-
ing an event with its causes, assigning it to the series
and general collection of previous occurrences which

1 Cf. Hume, op. cit., pp. 87-95.
* Cf. Wundt, op. cit., Bd. II, S. 82.

186 CRIMINAL RESPONSIBILITY

have produced it and made it necessary. To give a
scientific explanation of a fact is to place it where it
implicitly belongs among others in virtue of which
it could neither not exist nor be otherwise than it is.
Determinism is thus the fundamental axiom of all
science. Science ends where liberty begins.1

When we name any branch of human knowledge
a science, we do not mean to bestow on it simply an
honorary title. We mean that "its facts are con-
nected by certain necessary relations which have been
discovered, and which are called laws." Such, for ex-
ample, is the science of astronomy, where the regular-
ity of occurrences is so obvious as to attract the at-
tention even of persons not at all accustomed to
scientific speculation. The periodicity of the move-
ments of the stars is one of the oldest discoveries of
science. The detection of uniformity in the changes
that take place in inorganic matter and in organic
bodies was more difficult, and took many centuries
longer. But now the sciences of physics, chemistry,
and biology are well established. The laws which
govern currents of air and water have also been
ascertained, and form the basis of the science of
meteorology. Little by little the idea of law, of a
permanent regularity of phenomena, has penetrated
all domains of human knowledge, even those which
once seemed destined to remain forever closed to it.2

The idea that there is room in the universe for
active forces over which the laws of the natural order
have no dominion, has been compelled again and

1 Cf. Flournoy, " Me'taphysique et psychologie," quoted by Du-
Bois, op. cit., p. 48.

2 Cf. Gide, op. cit., pp. 3-4.

AND SOCIAL CONSTRAINT 187

again to yield to the view that these laws admit of
no exceptions. The last point where independence of
the natural order is claimed to exist is in the con-
scious will of man. But by taking sufficient account
of his physical nature, nurture, and environment, it
seems possible to reduce even man's will to a mere
manifestation of natural forces. Man's so-called
free spirit is but nature's own power flowing through
a marvellously complex channel. The natural laws
become here infinitely subtle and difficult to trace;
but there is no evidence to prove that they are
broken.1

From the scientific point of view, man must re-
gard himself as part of the totality of things, animals,
and persons. Human nature is a portion of universal
nature; man's life participates in the wider life of the
universe. The natural order can admit of no real
exceptions; what seems anomalous must cease to
appear so in the light of advancing knowledge.
Science is constantly verifying this truth. Accord-
ingly when science attacks the problems of human life,
it immediately breaks down man's imagined inde-
pendence of nature, and demonstrates his entire de-
pendence. The forces which bind him are primarily
the inner forces of motive and disposition and estab-
lished character, yet between these inner and outer
forces of nature there is no real break. They are ulti-
mately one. Man gets his original endowment by
heredity; this is developed and formed into character
by the influence of circumstances and education. All
that he does is to react — as any animal or plant or
even stone does in its measure — on the influences

1 Cf. Scott, op. cit., p. 334.

188 CRIMINAL RESPONSIBILITY

which act upon him. Such action and reaction to-
gether yield the whole series of occurrences which
constitute his life. The admission of freedom would be
fatally embarrassing to scientific procedure. Science
is bound up with the denial of freedom in any and
every sense of the word.1

Thus, the great idea of a natural order, after hav-
ing step by step successfully invaded all other fields
of knowledge, has at last penetrated the domain of
man and society.

In this connection, we ought to mention the argu-
ment from statistics. Statistics have demonstrated
many times the almost infallible regularity with
which are produced both the most important facts of
life (such, for example, as marriages) and also the
least significant (such as putting unaddressed letters
in the mail).2

There is a striking agreement in the number of
particular crimes committed each year. If any one
will but notice the tables of comparative statistics,
he will be fairly startled at the uniformity shown
from year to year. For example, the number of mur-
ders and homicides in the United States for each mill-
ion of people was, for the successive years from
1900 to 1906: 108.4, 100.9, 111.7, 112.4, 104.4, 111.9,
108.9.'

In discussing the statistics of crime, Mayo-Smith 4
calls attention to some impressive regularities. In
southern climates, crimes against the person are

1 Cf. Seth, op. cit., pp. 362-364.

2Cf. Gide, "Traite" d'economie politique," 9th edition, p. 8.

3 Bliss, "New Encyclopedia of Social Reform" (1908), pp. 334-
336.

4 Mayo-Smith, "Statistics and Sociology," pp. 270-279.

AND SOCIAL CONSTRAINT 189

more numerous than those against property, while in
northern latitudes the offences against property are
in the excess. There are more crimes against the
person in summer than in winter, while wrongs
against property are fewer in summer than in
winter. The influence of temperature is clearly seen
in the fluctuations in the number of suicides. In
general, and for all countries, the number of suicides
increases steadily from the beginning of the year
until it reaches the maximum in June, and then de-
creases until it reaches the minimum in December.1
The discovery of the astonishing uniformity in the
criminal statistics of France led Quetelet to write his
oft-quoted sentence, "There is a budget which is paid
with greater regularity than that of any finance
minister, — it is the budget of the prison, the galleys,
and the scaffold."

It thus appears possible to foretell with marvellous
precision the number of particular crimes which will
be produced in a given population if it is not sub-
jected to unusual variations in temperature, supply
of food, and industrial composition. Crime seems to
be the consequence of certain great natural condi-
tions over which the individual has little or no con-
trol.

That man's actions are determined is in this way
attested by the results of statistical science. The
observation of men acting in numbers sufficiently
large to neutralize the influences which operate only
on a few, and to leave the total product about the
same as if the volitions of each had been affected by
the determining causes common to the whole, shows

1 Ibid., p. 243.

190 CRIMINAL RESPONSIBILITY

the results so uniform that they may be as accurately
foretold as any physical effect which depends upon
a multiplicity of causes. The cases in which voli-
tions do not admit of being confidently predicted,
are those in which our knowledge of the influences
at work is so incomplete that with equally imperfect
data there would be the same uncertainty in the fore-
casts of the astronomer and the chemist.1

1 Cf. Mill, op. cit., p. 577.

^ CHAPTER XI

CONCERNING "THE TESTIMONY OF SELF-
CONSCIOUSNESS "

It is often asserted that man is immediately con-
scious of having freedom of will. Sidgwick, for ex-
ample, says: i"I hold, therefore, that against the
formidable array of cumulative evidence offered for
Determinism, there is to be set the immediate affir-
mation of consciousness in the moment of deliberate
action." ■ We must examine this alleged testimony
of self-consciousness.

Before cross-examining this internal witness in
order to discover exactly what it declares, we may
call attention to the fact that even if we had a con-
sciousness of being able to determine ourselves in
despite of all causes, this would not prove the real ex-
istence of that ability. We have a consciousness
that the sun travels from east to west around the
earth. But we should be greatly in error to conclude
that therefore the sun actually does this. For a
long time, of course, men believed that their con-
sciousness of this phenomenon demonstrated its ex-
istence. But science now knows certainly that it
is not true. In many other matters, consciousness
is deceptive, and does not demonstrate the reality
of its perceptions. The hallucinated person has a
clear and precise consciousness of things which are

1 Sidgwick, "Methods of Ethics," p. 65.
191

192 CRIMINAL RESPONSIBILITY

unrealities. For example, he may be told that Mr.
Smith is Mrs. Jones; whereupon in Mr. Smith he per-
ceives Mrs. Jones, and acts toward him as he would
act toward her. He thinks that he is with her. He
has a consciousness of seeing, hearing, and touching
Mrs. Jones, when in reality he sees, hears, and
touches Mr. Smith. His consciousness deceives him.
After being brought out of his hypnotized state he
executes an absurd order given to him while hyp-
notized; but nevertheless thinks himself free, claims
to have a consciousness of his freedom, and tries to
find pretexts to justify his absurd action. Thus the
facts of hypnotism furnish experimental proof of the
insufficiency of the argument from the testimony of
self-consciousness.1

The advocates of indeterminism appeal to this
inner oracle, and affirm: " Self-consciousness knows
nothing of necessity or determinism. Every one has
an immediate feeling of certainty that his acts have
not been moulded by outside causes, that everything
would have happened otherwise if he had willed dif-
ferently. And he is likewise absolutely sure that
his future actions depend upon his will. He could
give up his present business and start another; he
could emigrate to a foreign country; he could com-
pletely alter his mode of life and his behavior to
others. Is the consciousness of such freedom but
an illusion ? This witness of the indeterminist
needs to be cross-examined quite carefully, in order
to discover the full truth. What does a man's self-
consciousness really testify?" This; that to the ex-

1 Cf. Hamon, "D6terminisme et responsabilit£," pp. 8-10;
Tarde, " Philosophie p&iale," p. 192.

AND SOCIAL CONSTRAINT 193

ternal influences which determine his life and char-
acter, must be added his own wishes and inclinations,
convictions and resolutions. It tells him that he is
not moved from without like a cogwheel in a machine,
but through the mediation of an inner element — his
will. His action is determined, not externally and
mechanically, but by an internal force. His char-
acter is not moulded mechanically by things and men,
but is formed by the reaction of an interior principle
upon extraneous influences, by which process his
nature is gradually developed. That is what his
self-consciousness reports. Never, however, does it
declare that the particular processes arise without
cause, that at any moment of his life just any sort of
occurrence may take place, utterly regardless of all
preceding ones. Such lawlessness would be equiva-
lent to a complete break-up of life into a series of dis-
connected and irrational accidents. Nor does his
self-consciousness say that his character is itself ab-
solutely uncaused, that it enters the world as a com-
pletely isolated element. In no sense does it contra-
dict the view that the spiritual personality, like the
organized body, is the product of evolution; that it
originally sprang from something else; that it was
exceedingly plastic during the earlier period of its
development, but gradually became more capable of
resistance, and acquired the ability to change its re-
lations to its surroundings through its own decisions.1
Consciousness may tell us that we act without
compulsion, but it never says that we act without
cause, or that the forces which determine us are in-
dependent of our original disposition and experiences.

1 Cf. Paulsen, op. cit., Bd. I, S. 450-451.

194 CRIMINAL RESPONSIBILITY

It declares very explicitly that we do what we will.
Now since we can think of contrary actions and re-
gard either as possible if we will it, we may errone-
ously conclude that we have an ability to will either
the one or the other of the contraries indifferently.
But this is by no means implied in the testimony of
self-consciousness. What we are immediately aware
of is simply this, that if we will the one of the two
contrary actions we can do it, or if we will the other
we can do it. But whether we can will the one as
well as the other is not included in the declaration
of self-consciousness. This testimony does not in the
least contradict the mature reflection: We can do
what we will, but at any given moment we can will
only a determinate object and absolutely nothing but
that. "I can do what I will. I can, if I will, give
all that I have to the poor and thereby become my-
self one of the poor, — if I vritt" But I cannot will
it, because the opposing motives have a great deal
too much power over me to permit me to will it. On
the other hand, if I had another character, the nature
of a saint, then I should be able to will it, indeed I
could not help willing it, and I should have to beggar
myself. Man always does what he wills; he does it
nevertheless necessarily. This is because he is what
he wills; for out of that which he is there follows
necessarily all that he ever does. When action is
regarded objectively, that is, from without, it is rec-
ognized to be subject to the law of causation in the
same absolutely unfailing way that any other natural
event is subject to it. But when regarded subjec-
tively, man feels that he does only what he wills to
do. This testifies, however, simply that his works are

AND SOCIAL CONSTRAINT 195

the manifestation of his own proper nature. The
same would be felt by every being in the world, even
the lowest, if it could feel.1

The indeterminist claims to be conscious of "free-
will," conscious, before he decides, of being able to
choose either way. The determinist takes excep-
tion to the use of the word consciousness with such
an application. "Consciousness" discloses only
what we do or feel, never what we are able to do. It
is not prophetic. We are not conscious of what
will or can be. "We never know that we are able to
do a thing, except from having done it, or something
equal and similar to it. We should not know that
we were capable of action at all, if we had never
acted. . . . We should not feel able to walk if we
had never walked. . . . Having acted, we know, as
far as that experience reaches, how we are able to
act. ... I am told, that whether I decide to do or
to abstain, I feel that I could have decided the
other way. I ask my consciousness what I do feel,
and I find, indeed, that I feel (or am convinced)
that I could, and even should, have chosen the
other course if I had preferred it, that is, if I had
liked it better; but not that I could have chosen
one course while I preferred the other. When I say
preferred, I of course include with the thing itself,
all that accompanies it. ... It is .. . unprecise
. . . to say that I act in opposition to my preference;
that I do one thing when I would rather do another;
that my conscience prevails over my desires — as if
conscience were not itself a desire — the desire to do

lCf. Schopenhauer, "Ueber die Freiheit des Willens," S. 23-24,
43, 98.

196 CRIMINAL RESPONSIBILITY

right. Take any alternative : say to murder or not
to murder. I am told, that if I elect to murder, I
am conscious that I could have elected to abstain:
but am I conscious that I could have abstained if my
aversion to the crime, and my dread of its conse-
quences, had been weaker than the temptation? If
I elect to abstain: in what sense am I conscious that
I could have elected to commit the crime? Only if
I had desired to commit it with a desire stronger than
my horror of murder; not with one less strong.
When we think of ourselves hypothetically as having
acted otherwise than we did, we always suppose a
difference in the antecedents: we picture ourselves as
having known something that we did not know, or
not known something that we did know; which is a
difference in the external inducements; or as having
desired something, or disliked something, more or
less than we did; which is a difference in the in-
ternal inducements. ... I therefore dispute alto-
gether that we are conscious of being able to act in
opposition to the strongest present desire or aversion.
The difference between a bad and a good man is not
that the latter acts in opposition to his strongest
desires; it is that his desire to do right, and his
aversion to doing wrong, are strong enough to over-
come, and in the case of perfect virtue, to silence, any
other desire or aversion which may conflict with
them." x

A consciousness of being able to act in the presence
of motives, but not under their control and deter-
mination, is not verifiable in experience. To verify
it and see it in action we should have to be able to do

1 Mill, op. cit., pp. 580-585. Cf. Priestley, op. cit., p. 90.

AND SOCIAL CONSTRAINT 197

two contrary things at the same time, or at differ-
ent instants when all the conditions were identical.
But this absolute equality and identity of circum-
stances and motives cannot be realized. When any
one begins again to act in order to prove that he
can do otherwise than he did before, this desire of
showing that ability is, itself, a new element of de-
termination for the second action and sufficient to
account for it.1

Can I have a consciousness of my independence of
every extraneous cause? For that I should have to
know all the influences which act upon me — physi-
cal and social environment, temperament, heredity,
habits, momentary impulses, etc. I should have to
measure the power of all these forces, and should
have to be able to show a remainder unaccounted for
by them, and consequently attributable to myself
alone. Now how could I have a consciousness of all
the external causes and their strength? This would
not be consciousness properly so-called, but science
or even exhaustive knowledge or omniscience. In
other words, I should have to be able to solve this
problem: Being given all the motions and all the
forces of the universe, to calculate their action and
to prove that my act, — for example, a perjury or
a truthful testimony, — could not result from their
action. Only an absolute intellect could accomplish
such a task. The free-willist, however, appeals sim-
ply to "the consciousness which the will has of it-
self." Well, if I regard merely my own consciousness,
I can only say, "I am not conscious of extraneous

1 Cf. Fouillee, "Critique des systemes de morale contemporains,"
p. 289.

198 CRIMINAL RESPONSIBILITY

causes producing my act." The free-willist, how-
ever, translates this proposition into the following,
which is widely different: "I am conscious that there
are no extraneous causes producing my act." The
confusion is evident. From the fact that a conscious-
ness in me of alien causes does not exist, it does not
at all follow that the causes themselves do not exist.
It is as if I said, "I do not see the stars that compose
the nebula; therefore, I see that stars do not com-
pose the nebula." An astronomer may place me be-
fore a very powerful telescope and resolve the nebula
into distinct stars. In the case of actions, I have
no right to pass suddenly from the subjective to the
objective, from the absence of any knowledge of ex-
traneous causes to the negation of their existence.
In a word, I cannot prove by consciousness the non-
existence of a certain cause; because consciousness
does not tell me anything except that I do not per-
ceive it. A similar procedure would be to measure
the expanse of space by the extent of my field of
vision. The conclusion, therefore, against the free-
willist, is that "a consciousness of independence"
would suppose an absolute chasm between me and
other causes, a perfect isolation of my will at the point
where it is free. But such a consciousness is im-
possible, because I am never certain of having ex-
hausted reality and the various forms of existence
so as to be able to say, "My will is exempt from every
relation with other beings, from every determining
environment, from every secret bond which could
establish communication between it and the great
mechanism of the world. I am alone. I am myself
a universe." This pretended "consciousness of in-

AND SOCIAL CONSTRAINT 199

dependence" can only be an unconsciousness of de-
pendence.1

Leaving this negative view, let us consider the posi-
tive aspect of the consciousness of freedom. Free-
dom is defined as absolute spontaneity, the ability to
commence a movement. The will produces its action
by a sort of creation ex nihilo, in the sense at least that
this action is not already determined by antecedent
events. Now, is a consciousness of this creative spon-
taneity possible? For it to be possible, I should
have to be able to perceive that the foundation of my
being is independent of all other beings. To be con-
scious of freedom I should have to be aware of what
is absolute in me. To know that I am the free
author of my resolution, I should need to be trans-
parent down into the profoundest depths, and I
should have to see my resolution rise from the
bottom of my own nature like water rising from
a spring which could regard itself as the creator of
its own waters. If there remained any obscurity in
any of the innermost depths of my being, I could
always doubt whether the action which I thought
free was not really the necessary effect of a certain
nature hidden and unknown which I had not given
to myself. Furthermore, this perfect knowledge of
myself would have to be a priori; for I should have
to see in advance the effects in their cause. Finally,
I should have to be my own cause, not merely the
author of my acts, but also the author of my own
being.

The free-willists do not usually recognize this.
They distinguish between the complete creation of

1 Cf. Fouiltee, op. cU., pp. 285, 286.

200 CRIMINAL RESPONSIBILITY

one's self and the creation of one's acts, which they
call freedom. They suppose that we have received
our being necessarily, but that our volitions are
freely given existence by us. If this matter is ex-
amined more carefully, however, a contradiction will
appear. If there is in me a created nature which I
have received, an existence of which I am not the
cause, there is in me a basis determined, necessitated,
impenetrable to my consciousness, because not the
result of my conscious action. Hence I may always
doubt whether an act which appears to spring from
myself does not really come from this unknown
basis, — whether I may not be the slave of the nature
which I have received from my Creator. I may not
properly be said to be the work of another, and at the
same time free in my desires and acts. He who called
me into existence out of nothing, in the same process
determined my nature, that is, all my properties.
For no one can create without making something de-
termined throughout and in all its qualities. So all
that I do and say necessarily proceeds from the char-
acteristics created in me; for it is only these set in
motion by some external impulse. As I am, so must
I act. Consequently, to be certain of being free, I
should have to be wholly the author of myself, of
my own being, as well as of my modes of action; and
I should have to be conscious of my whole self. In
other words, I should have to be the absolute exist-
ence and the absolute consciousness, or God.

If the free-willist carries his arguments to comple-
tion, here is where he ends. To be freely moral, in
all the force of the term, is ultimately to be a god,
since it is to be the creator of my own goodness,

AND SOCIAL CONSTRAINT 201

nature, and being. The free-willist cannot stop
half way. He cannot maintain that my nature has
been created for me. For then there is in me an exist-
ence received from elsewhere and on that account un-
known and perhaps the cause of my volitions. In a
word, either I have a consciousness of a free will and
an absolute existence, and then am God; or else I
have not a consciousness of it, and then I have not
a consciousness of my freedom.1

lCf. Fouille*e, op. cit., pp. 286-288, and Schopenhauer, "On
Human Nature," pp. 82, 83.

CHAPTER XII

FREEDOM AS ABSENCE OF EXTERNAL
CONSTRAINT

The determinist would restrict the meaning of the
word freedom so as to denote simply the absence of
external constraint. He would not let it signify
independence of the law of causation. To be free
means to act out your own will. It does not imply
willing without cause. To be unfree indicates action
not in accordance with your own will, but under com-
pulsion. "By freedom, whether of the will or any-
thing else, men at large mean freedom from com-
pulsion. What know they, or care they, about
uniformity of nature, or predestination, or reign
of law?"1 Spinoza defined freedom in this way:
"That thing is called free, which exists solely by
the necessity of its own nature, and of which the
action is determined by itself alone. On the other
hand, that thing is necessary, or rather constrained,
which is determined by something external to itself
to a fixed and definite method of existence or ac-
tion." 2 Hume said: "By liberty, then, we can only
mean a 'power of acting or not acting, according to the
determinations of the will; that is, if we choose to
remain at rest, we may; if we choose to move, we
also may. Now this hypothetical liberty is univer-

1 Cf. Hodgson, in Mind, O. S., vol. V, pp. 226 ft.
'Spinoza, op. cit., p. 46.
202

CRIMINAL RESPONSIBILITY 203

sally allowed to belong to every one who is not a
prisoner and in chains." ■

In agreement with this physical signification of
"freedom," both men and animals are said to be
" free " if no chain, prison, maiming, or other physical
restraint or interference prevents action from taking
place in accordance with what is willed. Any one is
free if he can do what he wills. It is exactly this
liberty that the ordinary man has in mind when he
claims that he is directly conscious of freedom. "I
can do what I will. I can go to the right or to the
left, just as I please." This is of course perfectly
true; but the will to do one or the other is presup-
posed. The statement concerns merely the depend-
ence of bodily action upon the will; it has no refer-
ence to the dependence of the will itself. The real
problem of freedom of the will, however, is a ques-
tion not of the effects of will but of the causes of will.
Action depends on will; but on what does will de-
pend? On absolutely nothing? A man can go to
the right if he will it, and to the left if he will it. But
has he a freedom that permits him to will indifferently
either the one or the other? Under exactly the same
conditions of internal disposition and external induce-
ments, can he decide upon the one course equally
well as upon the other? To say that his will does not
depend upon some other person but simply upon
himself, is no escape. This means simply freedom
from external constraint. But will is "determined "
just as truly if it is dependent upon internal causa-
tion, — upon antecedent desires, wishes, impulses,
aims, education, purposes, ideals. Is man like every-

1 Hume, op. cit., p. 95.

204 CRIMINAL RESPONSIBILITY

thing else in the world, a definite being, with precise
qualities, from which his reaction upon a given ex-
ternal action proceeds in a necessary and inevitable
manner, or is he a single exception in all the universe?

"I ought" implies that "I can," and that I am not
responsible for what I cannot do: this is true if by
" cannot" is meant compulsion, and by "can" free-
dom from compulsion. It is not true if "I can" is
intended to mean that "I" is a first cause, not de-
termined by anything else. If my will is forced by
some power outside of me, I cannot be held account-
able for what I do under the influence of that con-
straint. I am answerable only for that which is
due to my will. Responsibility presupposes freedom
from compelling pressure; but this is very different
from freedom from causal dependence. Compulsion
must not be confounded with causation. The force
which determines the will need not be a power exter-
nal to the will; it may be my own desires, ambitions,
ideals, passions, habits, experiences, inheritance.
Everything that happens in this world has a cause.
In the case of human volitions, the motives are often
obscure. Most of the time we are completely igno-
rant of what disposed us to desire and to will as we
do. Nevertheless, the law of causation is inviolable.1

We all admit, in accordance with the ordinary sense
of the word freedom, that reward and punishment,
praise and blame, can be justified only on the ground
that men are free, that is, that their actions are not
externally constrained. But this kind of freedom,
independence of compulsion, must not be confused
with freedom in the special sense, that a man's voli-

\Cf. Westermarck, op. cit., vol. I, pp. 322-324.

AND SOCIAL CONSTRAINT 205

tions are not caused. Of course, no one thinks of
praising or blaming any one for acts performed under
compulsion. If coerced, a man is no more responsi-
ble for his behavior than for that of some person over
whom he has no influence. His conduct is creditable
or discreditable, only if voluntary, expressive of him-
self, free. On this point, all agree. But we must
never forget that freedom in this sense implies sim-
ply independence of outward constraint.

A free deed of mine is one that is due to my own
will and not to something external that compels it.
It is an act which would have been different if my
will had been different. For it I am socially account-
able. An unfree deed of mine is one not due to my
own will but to some extrinsic force. Whether my
will consents or not makes no difference in the occur-
rence of the action. In such a case I am not responsi-
ble. For example, if a man by force placed a gun
in my hands, aimed it at another person, pulled the
trigger, shot and killed the other, all by compulsion,
I could not be held guilty of a crime and punished.
I was not free, and cannot rightly be made to answer
for the occurrence. But the free-willist does not
mean by freedom the absence of external constraint.
He means that volition is uncaused, a first cause, act-
ing independently of anything and everything that
has gone before.

The determinist maintains, in agreement with pop-
ular speech, that the term freedom should mean sim-
ply the ability to cause decisions and acts by one's
own will. An act is free if the will of the agent is its
immediate cause; it is determined, if an external
force produced it, whether directly by physical con-

206 CRIMINAL RESPONSIBILITY

straint, or indirectly, by threats and misrepresenta-
tions. To be free simply means to be able to do what
one wants to do. We regard ourselves as free when
no material obstruction or physiological weakness
defeats our desires. Barriers on the one hand, and
sickness on the other, are the obstacles which usu-
ally restrain human liberty. The gradual transition
from complete freedom to irresistible coercion is well
illustrated in the following supposition: "A person
stays in a room because his business keeps him there,
or because he has no desire to go out, or because he
has been promised something to remain, or because
he will be punished if he quits it, or because a sentry
at the door will shoot him if he leaves, or because the
door is locked and he himself is bound hand and foot.
Here we have a graduated scale from perfect freedom
to absolute compulsion." ■ Archimedes remains in
his room when locked up in it or when so wholly
absorbed with a problem that he has no idea of leav-
ing it.2 Though externally constrained in the one
case, and externally free in the other, he is equally
"caused" or "necessitated" to remain in both cases
and could not do otherwise.

Man acts freely, in the moral sense, when he acts
in accordance with inner determination, a causation
dependent partly upon his original disposition,
partly upon the development of his character. A
man who, in the presence of the impulses of the mo-
ment, is not determined by the total result of his
whole spiritual past, acts not freely, but is at the
mercy of whatever impulses happen to be present in

1 Paulsen, op. cit., Bd., I, S. 442-444.

2 Cf. Voltaire, "Le philosophe ignorant," chap. 13, last sentence.

AND SOCIAL CONSTRAINT 207

consciousness. In truth, it is not determinism that
conflicts with real freedom and responsibility, but
the so-called "free-choice" theory. For since no
action without motive is possible, it follows that if
a motive does not have to undergo assimilation and
transformation by the character before influencing
action, then it represents but haphazard occasion
and makes of man the plaything of fortune. Shall
moral action be said to be composed of chance im-
pulsions? Hardly; rather let us say that "freedom
consists in living according to reason" ; or with
Spinoza, that a man is "so far free, as he is led by rea-
son; because so far he is determined to action by
such causes as can be adequately understood by his
unassisted nature, although by these causes he be
necessarily determined to action. For liberty . . .
does not take away the necessity of acting, but sup-
poses it." ■

Determinism is sometimes said to deny self-
activity, intelligent and deliberate choice on the part
of man; but this is an unfounded calumniation. It
does not deny that man is intelligent and capable of
deliberation and choice. In fact, it says that man
must deliberate and choose; it goes even further and
declares that he must make the very choice which he
makes, and can make that one alone. This choice is
pee or his own in that it is the result, not of external
constraint, but of internal causation, that is, is ren-
dered necessary by the individual's character, by the
totality of his inherited and acquired tendencies,
desires, dispositions, ideas, habits, and emotions.

To say that a man's volitions are caused is not to

1 Spinoza, " Political Treatise," p. 295.

208 CRIMINAL RESPONSIBILITY

imply that he is robbed of the power of self-acting.
When a person, after deliberation, reaches a decision
of the will, that decision is arrived at "freely,"
although it is "necessarily" what it is, and could not
be any different. The antecedents having been what
they were, the consequent is of necessity what it is.
The will, in the act called choosing, selects inevitably
the course followed. It is shut up to just one choice.
Even though acting "freely," the man cannot do
otherwise than he does. His action is free, in that
it is determined by his own will. This is free, in that
it is conditioned by his own motives. These are free,
in that they follow from his own desires. These
are free, in that they depend on his own nature,
This is free, in that it is made by his own experiences.
These are free, in that they are composed of his own
feelings and sensations. The sequence of causes may
be traced back along the course of evolution until
it reaches the rudimentary element received as a
legacy from the parents.

Freedom in this deterministic sense, and as ap-
plied to intelligent beings, is simply self-control. It
does not imply that the mind's effort is not controlled,
but that it is directed by the individual who makes
the effort, and is not coerced by some extraneous
power. Thus freedom is identified with self-deter-
mination. Where it exists, there is absence of ex-
ternal constraint. This is the only real meaning
the word can have. The determinist does not argue
that man is a passive mass of flesh and bone. He
says that man is self-active, and has all the abilities
and activities which psychology finds him to possess.
The only property denied him is that mysterious

AND SOCIAL CONSTRAINT 209

something called "free-will," which sits in judgment
on the different motives to action and finally decides
without causation what course it will take. The de-
terminist declares that the will has not this ability.
Volitions occur in a determinate order of sequence,
and depend on their antecedents. Each choice is
wholly determined by character and environment.

CHAPTER XIII
CHARACTER AND ENVIRONMENT

The determinist and the free-willist entertain op-
posed views concerning the nature of character. The
conception of the free-willist may be represented by
a quotation from Seth: "For each man there is an
ideal, an 'ought-to-be'; for each man there is the
same choice, with the same momentous meaning, be-
tween good and evil. To each there is set funda-
mentally the same task — out of nature and circum-
stances, the equipment given and the occasion offered
— to create a character. For character is, in its es-
sence, a creation, as the statue is; though, like the
statue, it implies certain given materials. What, in
detail, character shall be, in what way good and in
what way evil, depends upon the given elements of
nature and circumstances; whether it shall be good
or evil, depends upon the man himself. Out of the
plastic material to create a character, formed after
the pattern of the heavenly beauty, that is the pe-
culiar human task. . . . Must we not admit that suc-
cess or failure here is determined ultimately not by
the material, but by the free play of the energy of
the self? Ethical, if not psychological, choice im-
plies a real alternative." ■

When Seth asserts that what the character shall be,
whether it shall be good or evil, depends upon the

1 Seth, op. til., pp. 373 ff.
210

CRIMINAL RESPONSIBILITY 211

man himself, what does he understand by "the man
himself" except the character? If "the character"
is made by "the man," goodness and evil are not ap-
plicable to it, but to its maker, "the man." If it is
created out of plastic material by "the self," the
thing of importance and the object for ethical judg-
ment is not its nature, but the nature of "the self."
What "character" commonly means is "the self,"
"the man." The passage quoted is a good example
of confused thinking. With reference to the possi-
bility of modifying one's character, I may avail my-
self of words used on another occasion. "What is
meant by this possibility? Analyze the sentence,
'I have the ability to modify my character/ 'My
character' is the object worked upon, and 'I' possess
the ability to modify it. But what is this 'I' that
chooses to modify my character? How shall this ' I '
be designated? It is itself 'my character,' and you
have the statement, 'my character has the ability to
modify my character.' But have I two characters,
one acting and one acted upon? Before 'I' could
change 'my character,' 'I' should have to change
my 'I'." ' Applying this argument to the matter
from Seth, we see that before the character could
be created good or evil by the man, his character
would have to be already good or evil. The "choice"
of goodness or evil expresses an already existing
goodness or evil of character. The endeavor to
push back the "alternative of choice" from "the
character" to "the man himself," is but a confused
play with names. It is certainly not a solution of
the problem.

1 McConnell, "Duty of Altruism," p. 198.

212 CRIMINAL RESPONSIBILITY

Seth declared that "For each man there is an ideal,
an 'ought-to-be'; for each man there is the same
choice, with the same momentous meaning, between
good and evil." In opposition to this idea, also, I
quote a passage from my earlier treatise: "An ideal
is not supernatural or unnatural; it is entirely
natural. Its roots do not lie in something transcen-
dental, but in the actual nature of man. An ideal is a
consciousness of the will's fundamental direction or
aim. ... An ideal is a necessary ideal, and fits the
nature of which it is the expression. It depends
upon the person for its qualities and force. It is not
1 free ' ; it is in a chain of causation. It is the product
of the particular nature. . . . Your nature you can-
not change; and you cannot change your ideal. Your
ideal is as good for you as mine is for me. ... I do
not exhort you to follow your ideal. I know you will
follow it. Indeed, we can say, you will have to fol-
low it, if these words are understood as containing
no reference to external constraint. I can recognize
no 'obligation' either to form ideals or to conform
to them. An ideal means simply what is willed. . . .
An ideal is as much a natural fact and subject to
natural laws of sequence and causation as any other
natural fact. It is an error to say that the 'self that
ought to be' is morally higher or better than the
'self that is.' It is the creation of the 'self that is.'
The credit for the glory of the ideal 'self that ought
to be' is to be ascribed entirely to the present actual
self; because it is this self that entertains the idea
of that future advancement and affirms it as an ideal
or good to strive for." *

1 McConnell, op. cU., pp. 207-210.

AND SOCIAL CONSTRAINT 213

If determinism is true, if everything that happens
is determined by antecedent occurrences, why does
not stagnation and fixity result in the world and in
personal character? Because the lines of sequence
are so numerous and so complex, and affect each other
in such a variety of ways. There are no two persons
exactly alike, simply because the same causes do not
operate alike on any two individuals. Different forces
and diverse combinations of influences produce abso-
lute uniqueness of character. Character is individual.
It is something different in every man. The funda-
mental traits of the human species exist in every one,
to be sure, but there are such variation, diversity, and
dissimilarity in the combinations and modifications
of the various qualities, that we can accept the state-
ment that the differences of moral attainment are
equal to those of intellectual capacity, and that both
are considerably greater than the physical differences
between giant and dwarf, or between Apollo and
Thersytes. The individual personality exerts a de-
termining influence upon action. If this were not
so, then all men under the same conditions would act
exactly alike. But as a matter of fact, the effects of
the same motive upon different men are manifold;
just as sunlight turns wax white while it turns chlo-
ride of silver black, and just as heat softens wax but
hardens clay. We cannot predict any effect from
a perception of the motive alone; but must have in
addition a knowledge of the character submitted to
that influence. The special constitution of each per-
son, on account of which his reaction upon certain
incentives differs from the reaction of every one else,
is what is called his character. This determines the

214 CRIMINAL RESPONSIBILITY

way in which the various motives shall have influence
upon him. There exist in every one certain tenden-
cies to action which are occasioned by the external
circumstances to accomplish themselves at this
time, in this place, and in this particular way. Thus
every act proceeds from two factors, — an inner and
an outer, — namely, from the original nature of the
person acting, and from the determining occasion
which causes that disposition to express itself here
and now. Upon incitement of external influences,
each person reacts in accordance with his own par-
ticular nature. Character is therefore the essential
factor in the production of an act. Thus we realize
that our deeds proceed from ourselves, from an "I
will " which accompanies all our behavior and makes
us recognize it as our own and as involving us in the
responsibility therefore. Circumstances are simply
an occasion upon which, or an instrument through
which, character expresses itself. Every person
has fundamentally unique tendencies, which make
up his character, and which only need external incite-
ment in order to manifest themselves. Hence to ex-
pect that a man, upon the same inducement, should
act at one time in one way, and at another time in
a totally different way, would be like expecting that
precisely the same tree which bore cherries this sum-
mer would bear pears next summer.1

The determinist, then, regards character as a nat-
ural product, and not as an absolute in the uni-
verse, a something independent of other existences.
It is made up of the heritage received from the par-
ents and from all remote ancestors, and of the ex-

1 Cf. Schopenhauer, "Ueber die Freiheit des Willens," S. 46-58.

AND SOCIAL CONSTRAINT 215

periences met with by' that original endowment.
Each experience has added something to it, making
it more and more complex, individual, and fixed. A
man's character at any particular moment is best
described as the totality of his tendencies to action.
These are of course made up of inherited and acquired
dispositions, — appetites, desires, passions, emotions,
sentiments, ambitions, ideals. Character plays its
part in the determination of every action. External
stimuli furnish the occasion and inner nature gives
the reaction. "Man is at any moment the sum of all
his previous experience, and his response to any stim-
ulus is colored by that experience. Thus the highly
moral Christian gentleman is not betrayed into rude-
ness by the grossest insult. We might even go so
far as to say that it would be impossible for him to
be rude. Long training, together with natural ten-
dencies, causes counter-stimuli to rise within him
almost simultaneously with the insult and determine
his conduct. The less-fortunately endowed and
wholly uncultured individual swears volubly at a
slight tread upon his toe. The action of each is the
natural reaction of personality in response to stimuli
— his personality being the sum of his past experi-
ence at the moment of action. Thus a person who
has been reared with a profound belief in the sanctity
of human life is restrained from becoming a murderer
under any and all circumstances. Being what he is,
murder to him is impossible. But another individual,
reared in an atmosphere where revenge is a higher
duty than obedience to the law, and having an in-
herent disposition to so regard it, kills his rival or a
feud enemy as a natural expression of himself. He

216 CRIMINAL RESPONSIBILITY

is no more free to choose any other course than is the
keg of powder into which a live coal falls." *

Thus character modifies our action and life more
than we think. Our lot sometimes seems to have
been assigned to us almost entirely from without.
"But on looking back over our past, we see at once
that our life consists of mere variations on one and
the same theme, namely, our character, and that the
same fundamental bass sounds through it all." 2

Acceptance of the doctrine of determinism need
not conflict with our sense of worth. We do not
regard ourselves as less estimable because the people
who know us best are certain that we shall not com-
mit some heinous crime. The will's dignity consists
in the fact that its exertion is conditioned by its own
individuality. I act as I do because I am I. But
this "I" is built up of heritage, training, and ex-
perience. The will is "free" only if this simply
means action in accordance with character, the in-
dividual nature of the person. " Freedom " must not
imply exemption from the law of causation, a breach
in the regularity, uniformity, and invariableness of
the connection of events with antecedent causes.

Determinism predicates continuity and inter-
dependence not only in the life of the individual
but also in the life of society as a whole. It asserts
solidarity between peoples and generations. "His-
tory shows how each generation closely depends on
the preceding and prepares the destiny of the follow-
ing. One generation gets from its predecessors its
physical and moral character, — not simply its size,

1 Parsons, op. cit, pp. 68, 69.

3 Schopenhauer, "On Human Nature," p. 73.

AND SOCIAL CONSTRAINT 217

force, and exterior aspect, but also its aptitudes and
tendencies (that is, its physiological heredity, of
which history gets at only the results). It receives
the management of its soil, cultivation, tools, dykes,
roads, bridges, houses, monuments, — which in ad-
vance facilitate and mark out its material life. It
derives also its economic regime, technical processes,
commercial practices, credit, and debt, which con-
dition its agriculture, industry, and commerce; — its
private law, procedure, organization of the family,
successions, and contracts, which determine its legal
life; — its governmental organization and public
institutions, which regulate its political life; — its
division into classes, groups, and corporations, which
decide its social life. It receives likewise all the
fundamental conditions of intellectual life: its lan-
guage, which imposes even the forms of ideas; — its
literature, philosophy, religion, public opinion, and
art, which transmit the conceptions, prejudices, an-
tipathies, and sympathies of its predecessors; — its
science, knowledge, and errors, which determine its
conception of the world. In all kinds of human ac-
tivity, history discloses between the generations a
continuity so complete as to hide the constant renew-
ing of society and to make it seem as if the same men
existed indefinitely. Above all these solidarities,
special to the individual branches of human life,
there may be verified a general solidarity common to
society as a whole. One generation bequeathes to its
successor not only habitudes, instruments of work
and enjoyment, burdens and enmities, active and
passive capital ; it leaves to it a general condition of
well-being or languor, a beginning of progress or of

218 CRIMINAL RESPONSIBILITY

decadence, which will react upon all forms of social
activity. This general solidarity is especially pro-
duced by the two forces which exercise the most per-
vasive influence on societies: The one is the political
organization, which regulates all the public relations
between members of the nation, and which may apply
for this regulation all the force of constraint, opinion,
and wealth concentrated in the public authority; the
other is education, which prepares all the habitudes
and conceptions of the future members of society by
employing all the force of compression or of example
which the adult possesses over the child or the
youth." ■

1 Seignobos, "La solidarity dans 1'histoire," Congres irdernaiional
de V education sociale, 1900, p. 46.

CHAPTER XIV

DETERMINISM NOT ESSENTIALLY MATERI-
ALISTIC OR FATALISTIC

It is sometimes said that determinism leads to
materialism. But this is not correct. Determinism
does not imply that all the causes which may be as-
sumed to be the antecedents of human actions are
forms or qualities of matter. They may be regarded
as forms or functions of mind, — desires, aversions,
ideas, purposes, — all regarded as distinct from
material phenomena. The determinist affirms only
the universal applicability of the principle of suffi-
cient reason, — the doctrine that for every occur-
rence of whatever sort, there must have been
antecedent causes, which furnish an adequate ex-
planation of this event.

The determinist may be a thorough idealist, alleg-
ing that everything is mind (but declaring also that
phenomena take place with regularity). Or he may
be a complete materialist, asserting that everything
is matter (but holding also that phenomena occur
with uniformity). Or he may be a dualist and par-
allelist, affirming that mind and matter both exist
but are independent of each other (avowing also,
however, that the events in either series follow each
other in determinate order and sequence). Or he
may be a dualist and interactionist, maintaining that
both mind and matter exist and act and react upon

219

220 CRIMINAL RESPONSIBILITY

each other (and contending also that all action is in
accordance with law). In short, then, determinism
is not peculiar to any metaphysical doctrine of the
nature of reality, but may be held by any and all.

Determinism is not essentially involved in the
dispute between realism and idealism. No doubt is
ever raised about the fitness of a realist professing to
be a determinist. There need be just as little doubt
about the propriety of an idealist espousing the doc-
trine. The deterministic idealist says, All that hap-
pens is in accordance with law. There is uniformity
in all the events of the world. Nothing takes place
without adequate cause. But "law," "causation,"
"necessity," are simply conceptions of mind, not in-
dependent existences. All things have the same kind
of being, namely, existence in and for mind.

Nietzsche furnishes an example, when he says:
"'Uncaused cause' or 'self-cause' or 'cause of itself
is the best self-contradiction that has ever been
thought of. It is a kind of logical rape or unnatural
deed. But the excessive pride of man has got him
horribly entangled in that nonsense. The demand
for 'freedom of the will,' in that metaphysical super-
lative sense, in which it unfortunately prevails in
the heads of the half-instructed, the demand to bear
the whole responsibility for one's actions, and to free
God, the world, ancestors, chance, and society from
responsibility, is indeed nothing less than a demand
to be that 'cause of itself,' and, with more than
Munchhausen's audacity, to lift one's self by the hair
from the bog of nothingness into existence. As-
sumed that any one gets beyond the boorish sim-
plicity of this celebrated conception of 'free-will,' and

AND SOCIAL CONSTRAINT 221

brushes it out of his head, I beg him now in addition
to carry his 'enlightenment' one step farther and
clear his mind of the reverse of that unmeaning con-
ception 'free-will.' I mean the 'unfree will/ which
amounts in the end to an abuse of cause and effect.
'Cause' and 'effect' ought not to be mistakenly ob-
jectified or materialized, as the naturalists do (and
those who like them naturalize in thought), in accord
with the prevailing mechanical doltishness, which lets
the cause press and push until it produces the effect.
Cause and effect should be used as pure conceptions,
that is, as conventional fictions for purposes of des-
ignation and understanding, but not of explanation.
'In itself there is no 'causal connection/ no 'effect
following upon its cause/ no 'reign of law.' It is we
alone who have devised cause, sequence, relativity,
compulsion, number, law, freedom, ground, purpose;
and if we in fancy place this symbolic- world as 'in
itself in existence, we proceed again, as we have al-
ways proceeded, mythologically." '

Scott also gives some statements which show how
idealism and determinism are compatible. "Laws
of nature are the character of mind; and the reason
why they must prevail in nature is, that a nature
which mind can know must bear the character of
mind on its face. Laws, then, are at root mind's
essence. At first glance, of course, they seem to have
nothing to do with mind. They are characteristics
of the natural order. They are the great binding
uniformities whereby the world is the world and with-
out which it would all fall loose. But essentially
they are also the binding conceptions whereby the

1 Nietzsche, " Jenseits von Gut und Bose," S. 32 ff.

222 CRIMINAL RESPONSIBILITY

mind is the mind and without which it would fall
asunder. They must, therefore, characterize every-
thing which the mind can know. Their universal
validity is proved by their source. Their derivation
from mind makes them universal for all objects of
mind. . . . The causal system, if the doctrine of
Kant have any truth, must be all-embracing. It is
one expression of that law-abiding character of the
universe which makes the latter an object of knowl-
edge. Hence the causal system stretches as far as
the knowability of the universe does ; and that means
all the way. For where the universe ceases to be
knowable, there (at least, if we follow the post-
Kantian interpretation of Kant) it ceases to be. And
with this result the possibility of freedom seems to
vanish. Man is a denizen of this universe. Every-
thing which is in the universe at all, every act and
event and object, must conform to the conditions of
knowability; and to be causally construable is one
of these." ■

Determinism is not essentially fatalistic. Fatal-
t ism teaches external compulsion; it believes the in-
dividual to be constrained by outward power; it is a
denial of all responsibility. But determinism is very
different ; it considers a person the product of causes,
many of which are internal; it regards his will, not
as forced by extrinsic causes, but as made by causes
which are in the main intrinsic. When we say that
a man is subdued by fate, we regard him as existing
independently of that which subdues him, we attrib-
ute to him an innate character which is acted upon
from the outside. He would be different if fate had

1 Scott, op. cit., pp. 336, 337.

AND SOCIAL CONSTRAINT 223

left him alone. But it means absolutely nothing if
we say that he would be different if the causes to
which he owes his existence had been different; for
instance, if he had been the offspring of other parents.
This shows that we distinguish between the original
part of a person and the part which is the product of
outer circumstances. His character belongs to his
original self; and, it is on the character only that the
moral judge passes his judgment, carefully consider-
ing the degree of pressure to which it has been ex-
posed both from the non-voluntary part of the in-
dividual and from the outside world. According to
the fatalist, character is compelled; hence personal
responsibility is out of the question. According to
the determinist, character is caused; but this has
nothing whatever to do with the question of re-
sponsibility.1

Mill gives the following clear description of fatal-
ism, showing its difference from determinism.
"When the belief in predestination has a paralyzing
effect on conduct, as is sometimes the case with
Mahomedans, it is because they fancy they can infer
what God has predestined, without waiting for the
result. They think that either by particular signs of
some sort, or from the general aspect of things, they
can perceive the issue toward which God is working,
and having discovered this, naturally deem useless
any attempt to defeat it. Because something will
certainly happen if nothing is done to prevent it,
they think it will certainly happen whatever may
be done to prevent it; in a word, they believe in
Necessity in the only proper meaning of the term —

1 Cf. Westermarck, op. cit., vol. I, pp. 320-326.

224 CRIMINAL RESPONSIBILITY

an issue unalterable by human efforts or desires. . . .
Pure . . . fatalism holds that our actions do not
depend upon our desires. Whatever our wishes may
be, a superior power, or an abstract destiny, will over-
rule them, and compel us to act, not as we desire, but
in the manner predestined. Our love of good and
hatred of evil are of no efficacy, and though in them-
selves they may be virtuous, as far as conduct is con-
cerned it is unavailing to cultivate them." *

It is often said that acceptance of the doctrine of
determinism kills the sentiments of hopefulness and
effort, and leads inevitably to inaction and discour-
agement. Is this true? Each individual is the re-
sult of a multitude of conditions, partly known,
mostly unknown. In accordance with these de-
termining causes, he is energetic or indolent, brave or
cowardly, strong or weak. Belief in the universality
of causation is, like any other event in the world, both
an effect and a cause. The person who is led to ac-
cept determinism recognizes that all his volitions and
actions are caused; he realizes also that in their turn
they are causes. Consequently, the doctrine need
not lead to inactivity and despondency. It may dis-
courage one person from further exertion, but could
do this only in case the other influences to which he
owes his character concur in producing this result.
It may lead another individual to more intense ac-
tion, greater effort, and stronger hopefulness; be-
cause the other determining conditions of his dispo-
sition cooperate in accomplishing this result. Logi-
cally, the doctrine of determinism provokes continual
struggle; for the individual knows that his endeav-

1Mill, op. cU., pp. 298, 303, 304.

AND SOCIAL CONSTRAINT 225

ors will necessarily and inevitably produce effects.
So the energetic individual feels internally con-
strained to put forth effort; it is his nature to do
so; and he lives out his nature. Born of vigorous
parents, and living in a circle where the strenuous life
is the one that receives praise and reward, he cannot
help being active. Thus, although a firm believer in
the reign of law, he is both hopeful and energetic.1
Determinism maintains that the causes of our ac-
tions are in the main internal. Will is not "a first
cause"; its dependence extends back into the in-
finite past. It is conditioned by our desires, which,
in turn, depend on still antecedent causes. Every
motive is such only through our own character. Ex-
ternal influences do not become motives except by
being assimilated by our own nature. An act that
takes place as a result of our character under certain
circumstances is not properly called a "fatal" act.
It is "necessary," "determined," "caused," but not
" fatal " in the ordinary sense of the word. It is not
produced by external causes, forces acting apart
from, and even contrary to, our own will. It is the
product of both character and environment; it is the
joint effect of both internal and external influences.
To ignore either of these factors is wrong. By " char-
acter" is meant simply the sum of tendencies to ac-
tion, the total disposition, which has resulted from
all past experiences or causes, and acts as a totality
in the presence of contemporary influences. In the
present moment my character responds to stimuli as
a concrete totality. In the following moment it will
have been modified by this additional experience.

1 Cf. Hamon, op. cit., p. 59.

226 CRIMINAL RESPONSIBILITY

Some new element or elements will have been incor-
porated. It is not an "uncaused cause." It has
undergone a long and complicated growth and de-
velopment, extending back to the first rudimentary
legacy from the parents.

Thus, while determinism asserts continuity, unifor-
mity, regularity, invariability, constancy, law, cau-
sation, necessity, or whatever term best expresses the
conception, it differs from fatalism in that it main-
tains that a man's acts are the result of internal
as well as external causes. The action of a man, in
spite of the necessity with which it proceeds from his
character and motives, is nevertheless his own; or,
better, is his own, because it proceeds with necessity
from his character and motives.

It is its kinship with fatalism that causes deter-
minism to be feared and rejected by so many people.
They turn away from it as though it implied a revolt-
ing slavery to evil impulses and appetites, and a sup-
pression of morality. They do not realize that man
may be determined to goodness, to beauty, to moral
laws, and may obey noble impulses of sensibility and
exalted motives of intelligence. They do not realize,
either, that the sinner in the way of evil may find the
narrow way again. The culprit in the bondage of a
low sensualism may pass under the yoke of good and
may submit henceforth to the lead of intelligence
and moral ideas. Each action is an effect. It could
neither not be nor be otherwise. It is the inevitable
product of the agent's character and circumstances
at that exact moment. The criminal could have
avoided his crime if his personality had been other
than it was, if his mentality had not been clouded

AND SOCIAL CONSTRAINT 227

by fatigue, by sickness, or by alcoholic intoxication,
if he had kept his moral instruction in mind, if re-
straining ideas had been twice as strong. But all
these ifs are useless; they come too late. Given the
efficacious attractions and repulsions, and the deed
has been accomplished, with all its unhappy con-
sequences to the individual, his family, and society.
But it is nowhere written that the wrongdoer is go-
ing to persist henceforward in a downward course,
and that he is forever delivered to evil. A fault hav-
ing been committed, now is the time for society to
bring educative influences to bear on the individual,
so as to arouse in his soul favorable tendencies to
action, intellectual incentives to goodness, reasoned
sentiments of moral duty.1

1 Cf. DuBois, op. cit., pp. 51-55.

CHAPTER XV

REWARD AND PUNISHMENT

The determinist, maintaining that acts are caused
by character under the stimulation of circumstances,
holds that determinism alone affords a reasonable
justification for praising or blaming, rewarding or
punishing, a person for his behavior. He says that
since the free-willist claims that a man's acts are not
determined by inner nature under the incitement of
external conditions, but are produced by "free-will,"
he has no vindication for reward or punishment,
praise or blame. The only reason for punishing for
crime is on account of its relation to the personality
of the culprit. The deeds themselves are, by their
very nature, merely temporary and perishing; and
if, as the free-willist holds, they result not from some
cause in the disposition of the person who performed
them, they can entail no infamy upon him. They
may be harmful; they may be contrary to all rules
of morality and religion; but the person cannot be
made answerable for them and punished; since, in the
indeterminist's doctrine, they proceeded not from
any enduring cause in the individual's nature. In
the free-willist's opinion, therefore, a man may be
as pure and untainted, after having committed the
most horrible crime, as at the first moment of his
birth; nor is the man's character anywise concerned
in his actions, since they are not derived from it ; and

228

CRIMINAL RESPONSIBILITY 229

the wickedness of his conduct can never be used as a
proof of the depravity of his nature. Why is it that
we do not blame any one for injurious actions if per-
formed unintentionally? Simply because we know
that the resulting injury did not spring from his
inner self. Actions are objects of our moral resent-
ment or approbation only in so far as they are in-
dications of badness or goodness in the internal char-
acter. It is impossible that they call forth praise or
blame where they proceed not from character but
altogether from chance or external violence.1

Does the assumption of freedom contribute any-
thing toward the solution of the problem of punish-
ment? If my crime was a free one, there is no war-
rant for punishing either for having done it or in
order to prevent its recurrence. It was not deter-
mined by either character or environment. / did not
do it. Who can cause what is causeless? By no
possibility could I have averted it. Who can take-
precautions against the spontaneity of freedom?
Why punish me for what / did not do and could
not possibly have prevented? Is the punishment
intended to ward off a repetition of the deed? Cer-
tainly not. It cannot make such changes in my
mind or body as to determine the non-occurrence
of acts which are by hypothesis independent of
what is contained in my character and environment.
Ordinarily, before judging behavior we try to find
out something about its setting. An act is good or
bad according to its motives and intentions. But
under this theory of "freedom," we cannot ask for the
causes of the action. For just in so far as it was

1 Cf. Hume, op. cit., pp. 102, 103.

230 CRIMINAL RESPONSIBILITY

"free," it cannot be accounted for by any ideas an-
tecedently in my mind, or by my natural instincts.
Hence it is an act without a setting — causeless, pur-
poseless, blind. Is it creditable? Are such acts the
only creditable ones? The freedom which means
that my conduct need not result from anything that
has preceded it, even my own character and impulses,
inherent or acquired, is seen in its implications to be
something very serious and terrible. Suppose that
I am endowed with this freedom, can I call it mine?
Suppose that I have given money to a beggar. If
the deed was really an act of "free-will," can I regard
myself as its author? What though I be a man of
tender heart, of benevolent impulses, a lover of my
race, and naturally incited by the sight of suffering
to make an effort to relieve it — these things could
have had nothing to do with causing the benevolent
action. It was the result simply of "free-will," and
might equally well have been accomplished through
some one else, through even the most unfeeling brute
upon the streets, a man whose impulses are all selfish,
and whose past life is a consistent history of sordid
greed. If it was "free," it was not conditioned by
antecedent circumstances of any kind, by the misery
of the beggar or by my pity for him. It was cause-
less, not determined. Furthermore, if my acts have
no necessary congruity with my character, what
guarantee have I that my life will not exhibit the
melancholy spectacle of the reign of lawlessness, im-
purity, and crime? It is wholly impossible for me
to guess how I shall "freely" behave. And I can-
not make any provision against consequences of
the most deplorable sort. Can my "free" will be

AND SOCIAL CONSTRAINT 231

trained by a course of education, or laid in chains by
life-long habit? In so far as it is "free," what I have
been, what I am, what I have always done or striven
to do, what I most earnestly wish for or resolve upon
at the present moment — these things can have no
influence toward deciding my conduct. If I am
"free," I must face the possibility that I may at any
moment be guilty of any crime that any man can
commit. The possibility is a hideous one. If will-
ing is "free," there is little use in laboriously school-
ing my desires to virtue, since at any instant, in spite
of this training, some unmotived volition may bring
forth from me a detestable deed. The dilemma can-
not be avoided. Volitions are either caused or they
are not caused. If they are not caused, an inexor-
able logic brings us to the absurdities mentioned.
If they are caused, the free-will contention is anni-
hilated, and determinism holds the field.1

The practice of punishment can derive no justifica-
tion from the free-will doctrine. If the malefactor
willed "freely," if he acted badly not because he
was of an evil disposition but for no reason whatever,
we cannot prove the justice of punishing him. That
he was beyond the influence of motives might make
it right to keep out of his way, or to place him under
bodily restraint, but not to inflict pain upon him,
when, by supposition, this could not operate as a de-
terring motive.

If the will is "free," what is the use of punishment?
It cannot be reached by external means, by the ap-

1 Cf. Fullerton, "Freedom and Free-Will," in Popular Science
Monthly, vol. LVTII, pp. 183-192; and "Free-Will and the Credit
for Good Actions," in Popular Science Monthly, vol. LIX, pp.
526-533.

232 CRIMINAL RESPONSIBILITY

plication of pain to the body. The sensibility has not
caused the wrong-doing; it has been simply an in-
strument in the hands of the free will. What sense
is there in making it suffer? Why inflict a sensual
pain upon the morally bad person, if the moral sphere
is raised high above influence from the physical
sphere? How can absolution for wickedness be ob-
tained through physical suffering? The moral evil in
the free-will remains there regardless of how much
pain is inflicted upon the innocent body. The free-
willist says, If the mysterious cause of your actions,
your free-will, is good in itself, we will give a pleasant
and agreeable sensation to your sensibility; but if
that free-will is bad, we will make your sensibility
suffer. This is an irrational procedure; and has
absolutely no reference to future effects. It is
practically and socially unjustifiable and useless.
Between free-will and afflictive penalty there can be
no connection. Free-will could be punished only in
case it willed to chastise itself, and could do this only
if already good, and hence in no need of chastisement.
Thus the bad will has to be converted before it can
be punished; and its conversion makes punishment
unjust.

The free-willist says to the determinist, You have
no right to inflict penal suffering, if the criminal's
act is the necessary result of natural laws, and could
not have been averted. The determinist replies, Yes,
exactly. Therefore we do not regard punishment
as a retribution or expiation for past offences, but
as a motive and guarantee of future good behavior.
It is given in order to obtain certain effects. It is
not to requite the criminal for his evil deeds, for

AND SOCIAL CONSTRAINT 233

they are past and gone forever, but is to deter him
from repeating his crimes, or, in other words, to pro-
tect society. It is regarded simply as an added cause
to bring about future good conduct. We deny a
responsibility that depends upon freedom of choice,
but we affirm a responsibility that depends upon
character. The criminal's nature is the cause of his
act. And just as we hold that his disposition has
been determined by past influences, we also believe
that it may further be determined by present and
future influences. So we administer this punishment
in order that it may affect his character and make
it better.

The free-willist further protests, Why punish this
man? That is unjust. You ought to punish his
ancestors and his fellows, but not him. They are
the forces which have made him what he is, and they
alone are responsible. The determinist replies, We
punish the criminal himself. When a person is sick,
it is to him that we give medicine that it may have
good effects upon his body and bodily action. When
any one is criminal, it is to him that we administer
punishment, that it may have a good influence upon
his mind and lead him to better actions in the future.
If a diseased person imperils others, he is isolated.
Likewise, the dangerous criminal is confined. The
object in both cases is the same, — not to punish the
subject, but to protect society, and also if possible to
cure the afflicted person and to make him a useful
member of the social body. The fact that we do not
consider the criminal morally blameworthy does not
cause us to deal with him in a manner dictated by
sentimental pity. We give him a treatment that is

234 CRIMINAL RESPONSIBILITY

regarded as efficacious to accomplish the end desired,
— first, the protection of society, and secondly, the
cure of the malefactor and his restoration as useful
and constructive instead of useless and destructive,
a danger and an expense. Moreover, realizing that
crime results from definite causes, we try to discover
these in the environment, and to get rid of them.
Determinism encourages preventive measures whose
object is to anticipate the causes of crime and to
counteract them.

The f ree-willist asks, Why do you not punish also
idiots and imbeciles? The determinist answers, Be-
cause it is impossible to work upon their intelligence
and to determine their future actions for good. This
is the object of punitive dealing, to insure good re-
sults. But the man without understanding, the im-
becile, cannot learn; and so it is as useless to punish
him as it would be to punish a piece of wood. The
idiot may not be influenced and corrected. He can-
not be deterred from acts by being chastised for them.
His behavior does not follow from reflection, delibera-
tion, and reason, but is purely reflexive, impulsive,
irrational. The normal man, however, is capable of
instruction and of acting under the dictates of reason.
Punishment in his case exerts the desired influence.
Laws and penalties are causes and means of determi-
nation for intelligent beings.

The f ree-willist inquires, If the sole object of penal
discipline is to obtain good future results, would it
not be well to give every one an occasional flogging?
The determinist replies, This misses the point. There
would be no object in chastising where no harm
had been done. It could not be expected to serve

AND SOCIAL CONSTRAINT 235

as a counteracting agency at some definite point of
danger.

The determinist renounces trying to suit the pun-
ishment to the moral depravity. He administers
it as a measure of social security. He justifies it on
grounds of social utility, without reference to the
ultimate moral nature of the individual, or to the
culprit's metaphysical freedom and responsibility in
acting as he did. He considers the criminal bad as
the necessary result of the operation of natural laws,
— heredity and training. He inflicts corrective dis-
cipline, not to atone for moral iniquity, but for its
social usefulness and for its beneficial effect on the
character of the sufferer. The principal aim is to
influence future behavior. The past deed was a
necessity and could not have been helped. But
future action is yet a possibility, and punishment is
inflicted in order to add the weight of other induce-
ments to prevent repetition of the damage. The
criminal code is a catalogue of opposing motives to
criminal actions. Laws and penalties are means of
determination for beings who think. The idea of
future punishment exercises a restraining force on
conduct. Legal ordinances endeavor to make the
incentives to right action outweigh those to wrong
action. And just so much greater the damage that
may result from a crime, so much the greater must
the motive be made which is to prevent the occur-
rence of the deed. All this is on the supposition that
the will is not free but may be determined, caused,
necessitated.

The determinist believes in the operation of nat-
ural law in the mental realm; and applies punish-

236 CRIMINAL RESPONSIBILITY

ment to a man in order to influence his understand-
ing and conduct. The criminal's act may be the re-
sult of ignorance on his part. Corrective discipline
educates him. Or his deed may be the consequence
of imperfect organization between the intellect and
the emotions. Penal suffering assists in securing the
domination of intelligence, by showing the man that
passion and desire heedlessly gratified lead to exces-
sive pain. Thus punishment is educative, and as-
sists reason in securing the mastery.

The problems of education depend on investiga-
tions concerning the nature of the human mind and
the possibility of improvement. When a philosophi-
cal doctrine shows itself incompatible with the funda-
mental conception of pedagogy, namely, the plastic-
ity and cultivableness of the pupil, as the theory of
indeterminism does, its claims for acceptance must
be carefully scrutinized. Indeterminism declares the
will to be free in the sense that it may choose a direc-
tion just the contrary of the determining influences
and causes. The incompatibility of such a view with
pedagogical objects is evident. Where the possi-
bility of a causal relation between educator and pupil
is excluded, where the mental and spiritual condition
of the pupil appears causelessly changeful every
moment, there any education must be considered
impossible, and any attempts at it must be regarded
as foolish.1

Administering punishment for the purpose of pre-
venting repetition of a harmful deed is based on the
natural laws of psychology. It becomes an additional
motive for good behavior. The idea of pain becomes

1 Cf. Rein, "Padagogik," S. 75, 76.

AND SOCIAL CONSTRAINT 237

associated with the idea of a certain action, and this
association of ideas will deter from that action.
The advocate of man's freedom of will would not
admit that animals are free moral agents; yet they
punish them. They whip their dogs and horses, to
teach them better behavior. Why not admit the
same efficacy in the punishment of man? Penal suf-
fering may waken his slumbering reason; it may in-
stil a wholesome fear of doing certain things. In the
eyes of the determinist, there is more to be hoped for
from punishment if man's acts are determined than
if they are the results of absolutely free will.

Using the inclusive formula of "punishment for
social protection," the determinist may inflict chas-
tisement for this object. He believes that society is
adequately protected only in case the person crim-
inally inclined is (1) made to realize that harm done
by him will be requited; (2) deterred from acting out
his disposition; and (3) reformed, and thus the pos-
sibly destructive force changed into a permanently
constructive one.

If a man feels inclined to commit a bad action,
society may induce him to refrain (1) by exciting
sufficiently great fear of punishment or vengeance;
or (2) by instilling superstition, in other words, dread
of punishment in a future life; or (3) by arousing
feelings of sympathy and general charity for others;
or (4) by appealing to his sense of honor, in other
words, the fear of shame; or (5) by quickening his
sentiment of justice, that is, the objective attach-
ment to fidelity and good faith, coupled with a re-
solve to hold them sacred, because they are the
foundation of all free intercourse between man and

238 CRIMINAL RESPONSIBILITY

man, and therefore often of advantage to himself
as well.1

Most important of all, however, the determinist
places his faith in the aim at prevention of crime.
Recognizing that there are certain determinate causes
of wrongful acts, he tries to find them out and to
apply such treatment as to counteract and overcome
them. He hopes that through natural evolution and
through man's discovery and scientific use of social
forces, crime may be eliminated from society and
criminal tendencies eradicated from the nature of
man.

1 Cf. Schopenhauer, "On Human Nature," pp. 97, 98.

CHAPTER XVI
THE NATURE OF LAWS

Aristotle maintained that virtue and vice are
voluntary, and that the existence of laws attests it,
since no one makes laws for animals or for automa-
tons submitted to necessity. That virtue and vice
are voluntary " seems to be attested, moreover, by
each one of us in private life, and also by the legis-
lators; for they correct and punish those that do evil
(except when it is done under compulsion, or through
ignorance for which the agent is not responsible),
and honor those that do noble deeds, evidently in-
tending to encourage the one sort and discourage the
other. But no one encourages us to do that which
does not depend on ourselves, and which is not volun-
tary: it would be useless to be persuaded not to feel
heat or pain or hunger and so on, as we should feel
them all the same." ■

Many others, since Aristotle, have repeated the ob-
jection that the threat of punishment and the prom-
ise of reward could not be effective with reference to
a being subject to necessity, any more than with ref-
ference to a machine. This objection rests on a con-
fusion between the material and the intellectual.
Man, according to the determinists, is a machine that
thinks and has for springs ideas. Each thought is a
tendency to action. The conception of future pun-

1 Aristotle, " Nicomachean Ethics," Book III, sec. 5.
239

240 CRIMINAL RESPONSIBILITY

ishment is a force that is able to counteract certain
other forces in the mind of man. Hence, legal penalty
may be efficacious, even though man be necessitated
in his behavior. When punishment is applied to a
being impelled by interests, like an animal, pain takes
place; and the idea and fear of future suffering may
be a force leading to the avoidance of the acts with
which the suffering is connected. In fact, laws and
punishments might be without any efficacy whatever
on beings whose wills were "free." But they are
causes and means of determination for persons who
are determined by ideas and feelings. Their power
is greater and more certain without freedom of the
will than with such an incalculable resistance.1

Hamilton argued that the existence of moral laws
attests the reality of freedom. "Practically, our
consciousness of the moral law, which, without a
moral liberty in man, would be a mendacious im-
perative, gives a decisive preponderance to the doc-
trine of freedom over the doctrine of fate. We are
free in act, if we are accountable for our actions.
. . . We have, and can have, no ground on which to
believe in the reality of a moral world, except in so
far as we ourselves are moral agents. . . . But in
what does the character of man as a moral agent con-
sist? Man is a moral agent only as he is accountable
for his actions — in other words, as he is the object
of praise or blame; and this he is, only inasmuch as
he has prescribed to him a rule of duty, and as he is
able to act, or not to act, in conformity with its pre-
cepts. The possibility of morality thus depends on

1 Cf. Guyau, "La morale anglaise contemporaine," pp. 361, 362,
and Fouillee, "La liberte" et le de*tenninisme," p. 36.

AND SOCIAL CONSTRAINT 241

the possibility of liberty; for if man be not a free
agent, he is not the author of his actions, and has,
therefore, no responsibility — no moral personality
at all." ■

Janet, also, argued that freedom was proved by
the existence of the moral law. "Suppose that man
be not free: either he would be constrained to ac-
complish the law by an irresistible necessity, and then
the law would be vain; or he would be prevented by
necessity from fulfilling it, and then it would be
senseless. To say 'Do this' to some one who cannot
help doing it, is useless; to say it to some one who
cannot possibly do it, is absurd. Moral action is
represented in the form of an ideal in the mind of
the agent, and is imposed as a command. This com-
mand would be futile and foolish, if man, by his very
organization, were but an automaton constrained
to do, or prevented from doing, what the law com-
mands." 2

This sophistry is due to a laziness of thinking which
refrains from instituting causes for the effect desired.
It is like abstaining from battle on the pretext that
if victory is necessary, combat is useless; while if vic-
tory is impossible, contest is absurd. Similarly, in
the preceding argument, Janet forgets that the pro-
mulgated law, with its motives influencing intelli-
gence and sensibility, may become one of the factors
of its own realization. A command, like a threat, is
therefore neither useless nor absurd in the hypothesis
of determinism, because it is itself a force to move

1 Hamilton, Appendix to "Discussions," pp. 624, 625, and "Lect-
ures," i, 32, 33.

8 Janet, "Traite" de psychologie," p. 303, quoted by Fouillee,
"Critique dea systemes de morale contemporains," pp. 282, 283. .

242 CRIMINAL RESPONSIBILITY

the automaton of intelligence and feeling. If an
objector declares, "Laws would not have, in such a
case, any moral character, since they would be real-
ized only in the way of determinism," the reply may
be made: This reduces simply to the statement that
if man be not free, morality can no longer mean the
morality of free beings. No one denies this. If any
one begins by defining morality in a manner to imply
free-will, he presupposes the very thing that is in
question. The free-willists simply show that de-
terminism cannot found a morality like their own,
that is, a morality implying the freedom of indiffer-
ence, the ability to choose contraries, the privilege
to act without determination by motives. But the
question is, whether such a morality is true, whether
it is the legitimate interpretation of the facts. Per-
haps science can dispense with the conceptions of free-
will, absolute imperative, and moral sanction. The
free-willists think these should be taken for granted.
But this is not so. The facts indicate that human
life and society are perfectly possible on the basis of
determination of ideas and of ideal action.1

Kant said: "Morality is possible only for a free
being. Now I say that a being who cannot act except
under the idea of freedom, must on that very account
be considered free so far as his actions are concerned.
In other words, even if it cannot be proved by specu-
lative reason that his will is free, all the laws that are
inseparably bound up with freedom must be viewed
by him as laws of his will. And I hold, further, that
we must necessarily attribute to every rational being
that has a will the idea of freedom, because every

1 Cf. Fouiltee, op. tit., pp. 282-284.

AND SOCIAL CONSTRAINT 243

such being always acts under that idea. We must
believe that a rational being has a reason that is prac-
tical, that has causality with regard to its objects.
Now, it is impossible to conceive of a reason which
should be consciously biased in its judgments by
some outside influence, for the subject would in that
case look upon its decisions as determined, not by
reason, but by a natural impulse. Reason must
therefore regard itself as the author of its principles
of action, and as independent of all external influ-
ences. Hence, as practical reason, or as the will of
a rational being, it must deem itself free." x

To ethical writers who champion a formal, a
priori, unconditional, categorical moral obligation,
freedom is essential; and since they are unable to
prove it, they finally accept it without proof and as
a necessary postulate. The moral law, according to
Kant, is certain by itself. We are immediately con-
scious of it. The certitude of its existence conducts
us to the absolute assurance of the reality of freedom.
Freedom is essential to the moral law, and must be
postulated. "Freedom is a pure idea, the objective
reality of which can in no wise be proved according
to the laws of nature; nor can it be given to us in
any possible experience; and, escaping every analogy
and example, it may not be comprehended or even
grasped." 2 Now to be satisfying it is necessary for
ethical theorists to deal more scientifically with this
problem. If they believe in freedom, they should
show reasons for the faith that is in them. To their
doctrine freedom forms an indispensable adjunct.

,Kant, " Grundlegung zur Metaphysik der Sitten," sec. III.
'Ibid.

244 CRIMINAL RESPONSIBILITY

Their moral law commands categorically and un-
conditionally, "Do this." But may I not inquire
whether it is possible to execute the order? If the
impossible is demanded, I cannot accomplish it. An
imperative is dependent upon the power to obey it.
Nothing can be a duty that cannot be performed.
The ability to act must be decided before action can
be said to be obligatory. If one went into a school
for the deaf and commanded them viva voce to
run, would obedience be due? If one went into a
ward of paralytics and bade them run, would they
be bound to execute the order? Obligation would
be nullified by the inability to hear and understand
the command in the first instance, and by the in-
capacity to execute it in the second. The power to
carry out an imperative should be investigated before
the imperative is declared obligatory. "You can
because you ought" starts at the wrong end. The
"can" must be decided before the "ought."

A method is too short and easy that dispenses
with an investigation of moral capacity and simply
says freedom is a necessary condition of the moral
law, therefore man is free. We may begin at the
other end and distrust the certainty of freedom,
and thus raise doubts about the moral law. A
freedom that is hypothetical can ground only a hy-
pothetical obligation. If man cannot know that he
is really free, he cannot know that he is really obli-
gated. He is bound to do only what he can do.
The moral law cannot be considered absolute with-
out belief in the absolute power to do what it com-
mands. The moment the ability to act comes under
suspicion, the obligation to act is rendered uncertain.

AND SOCIAL CONSTRAINT 245

It is contradictory to affirm that obligation is certain
while freedom is uncertain. If freedom is uncertain,
obligation is doubtful, and performance of it prob-
lematical. When any one says that freedom of the
will contradicts all the known laws of science and is
incomprehensible to our understanding, why should
he still declare that it must nevertheless be postulated
for the sake of the moral imperative of which it is the
necessary condition? Why not rather doubt the
moral imperative? If freedom be a prerequisite of
morality (of the unconditional sort), let us not meekly
assume its reality; let us investigate whether freedom
is a wrong conception and the morality based on
freedom must be given up.

It has been held in the past, and is too often
thought at present, that moral needs have the pri-
macy in the determination of truth and the guidance
of conduct, or in technical terms that "practical rea-
son" takes precedence over "theoretical reason."
For example, it is believed in regard to immortality,
that the proper method of investigation is not a
scientific search for facts to establish or to disprove
it, but a consideration of its need for the purposes of
morality. Immortality must be postulated for the
sake of moral obligation. The arguments are ' ' moral
arguments." The injustice of this world demands
a future world in which justice shall reign; the ap-
parent triumphs of evil in this life call for an after-
life in which good shall obtain the final and enduring
victory; the incompleteness of our present existence
renders further existence necessary for completeness;
the soul's capacities do not receive full exercise now,
so must have larger opportunity hereafter; the social

246 CRIMINAL RESPONSIBILITY

feelings of love and friendship require a reunion with
dear ones in a future state; — these and similar moral
needs are declared to have the primacy in the deter-
mination of whether there is a life after death. The
scientist who would submit the phenomena to scien-
tific investigation is proclaimed not only mistaken in
his method but a reprobate in character and deserv-
ing of social punishment. Certain foundations of
morality must not be tampered with. How inspire
the masses with restraining fear if the consuming
wrath of God is not preached? How maintain the
practice of goodness if the fear of hell is removed, or
any tenet of religion undermined? There are realms
in which intellect and reason are out of place. In
these spheres reason must not attempt to acquire
positive knowledge, or formulate statements of prob-
ability. Action in moral matters is to be guided
not by experience of facts and reasonable conclusions
therefrom, not by demonstrable truth or the most
probable conclusions in the absence of exact certi-
tude, not by ideas of objective facts and relations
capable of analysis and criticism. Reason must be
neither scientific nor philosophical, but must be con-
verted into blind faith, the adoration of mystery.
The primacy is given to moral needs and religious
belief. Morality is not subject to science and phi-
losophy; they are subject to it. The principles of
morality are above investigation and criticism; they
transcend reason. The ground of obligation is in a
religious creed. In the absence of perfect knowl-
edge, conduct is not to be regarded as problematical,
uncertain, risky; it is always and unquestionably
sure, being directed by "spiritual insight."

AND SOCIAL CONSTRAINT 247

What shall we say of such views? Shall we admit
that science is gracefully to retire when in the pres-
ence of certain sacred things? Is truth to be deter-
mined by "practical needs" and not by "cold
reason" ? Are the known and knowable to be sub-
ordinated to the unknown and unknowable? Are
certitude and probability to be exchanged for tran-
scendency and mystery? No. Reason is to be ap-
plied to anything and everything. These "practical
needs," "spiritual insight," "religious faith," are
not supreme, but must submit to examination and
trial. Reason is to guide our actions, not most of the
time, but all the time. It must never surrender its
leadership or yield to a mystery. Man is not called
upon to prostrate himself before a categorical im-
perative of the pure practical reason, or before a
command that falls from the clouds. Truth must
not be judged by its accord with man's "moral or
practical needs," real or imaginary. A system of
ethics grounded upon the transcendent, the mysteri-
ous, the metempirical, has no solid foundation.1

All laws, then, whether "natural" or "moral,"
are conditional. Many people hesitate to place the
social sciences on a level with the physical sciences,
because they think the latter belong to the realm of
inexorable Necessity, while the former belong to the
realm of Liberty. They believe that the physical
sciences deal with matters which cannot help taking
place, while the social sciences are concerned with
things which may or may not occur, according as free

1 For further consideration of this subject, see the author's
"Duty of Altruism," chapters on "Theology and Obligation" and
"Metaphysics and Obligation."

248 CRIMINAL RESPONSIBILITY

human wills decide or choose. The physical sciences
admit of an exact prevision of what fact will succeed
or accompany another fact. Thus the astronomer
can calculate the exact minute at which an eclipse
will take place a thousand years from now; and the
chemist knows precisely what will be the result of
combining chemical substances under certain condi-
tions. On the other hand, unfailing prediction is im-
possible in any of the social sciences. The social
worker, the economist, and the statesman can only
form more or less trustworthy surmises concern-
ing the movement of social, economic, and political
events. Is this difference in possibility of forecast due
to the fact that the physical sciences are governed
by "natural law," while the social sciences depend on
the " free-will " of the actors; and "free-will" is ca-
pricious, while "natural law" is an inflexible power
which commands unconditional obedience? No. A
"natural law" is really nothing but a uniform way
of behavior which spontaneously arises in the rela-
tions of things or men. This mode of acting may,
indeed, be called "necessary"; but it is "necessary"
only in case certain foregoing conditions are fulfilled.
For example, atoms of hydrogen and oxygen do not
necessarily form water; but if, under certain condi-
tions of temperature, pressure, etc., an atom of oxygen
is placed in contact with two of hydrogen, they will
unite to produce water. Now precisely similar is the
action of men, these "free moral agents." Men are
not obliged to buy and sell, unless certain foregoing
conditions have been fulfilled. But if a man dis-
posed to sell meets a man disposed to buy, and if
their offers are mutually acceptable, they will "neces-

AND SOCIAL CONSTRAINT 249

sarily" make a transaction at a determinate price.
This transaction of these "free moral agents" is ex-
actly as "free" or "necessary" as is the action of
chemical substances or the movements of astronom-
ical bodies. ■

What is the relation between the "ought" judg-
ment and the "is" judgment? Many writers on
ethics maintain that the "ought" is essentially dif-
ferent from the "is," and can never be resolved into
it. The dissimilarity, it is said, between a descrip-
tion of fact and a norm of reason is fundamental.
Reason often declares the opposite of the present to
be morally due. The actual is not in harmony with
the ideal; history does not conform to morality;
nature is not in agreement with reason ; the " is " does
not correspond with the ' ' ought . " In a person's own
life the perception of the discrepancy between what
is and what ought to be is the call to duty. One is
obligated to try to make the real accord with the
ideal. Thus, the "ought" implies something more
than facts. It implies superiority over them. It
sits in judgment over the real, and constitutes a man-
date for the will to make and modify it. The opinion
championed in this treatise holds that the "is" is
the more basal, and that the "ought" depends upon
it and derives all its force from it. Reason is depend-
ent upon the actual fafts for its norm. What ought
to be is obtained from a consideration of what is;
it is a conclusion from the observation and compari-
son of the facts of experience, and the discovery and
generalization of their laws. "The ideal" which is
said to be better than "the actual" is nevertheless

1 Cf. Gide, op. cit., pp. 5 ff.

250 CRIMINAL RESPONSIBILITY

based upon it, and is merely the actual represented
in different combinations. The idea in which some-
thing appears as better than the present is a psychi-
cal phenomenon, and subject to psychical laws. The
law of causation reigns in the mental realm just as
truly as in the physical.

The objection is raised, "But the ideal contains
two distinct characteristics: one presenting the actual
present, the other representing a possible future. It
is the latter element that saves the ideal from deter-
minism, that is, from the 'is.'" To this objection,
we reply, The representation of a "future possibil-
ity," is dependent upon present and past actualities
for its existence and power. It has validity for some
one, some disposition, some character, which, if other
than it actually is, would not have formed such an
ideal and would not respond to it. An ideal is yours
or mine, and depends upon you or me, upon present
and past causes, from which it derives all its qualities
and force. It is not "free"; it is a product; it is
in a chain of causation. You have such and such an
ideal, because your nature is what it is. I have a dif-
ferent one, because my character is unlike yours.
An ideal is to be accounted for by the disposition of
which it is the expression. How diverse the ideals
of a Negro, a Chinaman, an Italian, a Norwegian, an
Englishman, an American! And how various the
ideals of the individuals within a race, on account of
the dissimilarities in parentage, status, education,
business, and religion! Thus actual events and
actual character account for an ideal and its strength.

At one time even physical occurrences were looked
upon as irregular and capricious. But the science of

AND SOCIAL CONSTRAINT 251

physics now regards law as reigning universally; for
instance, the law of gravitation expresses the con-
stant behavior of all masses in the universe toward
one another, and may be determined with mathe-
matical accuracy. Biology in its various branches
was longer supposed not under law. But more and
more the exceptions, the variations, the sports, the
freaks, are being accounted for, explained, and seen
to observe uniformity. It is only the greater com-
plication of the occurrences in biology than in physics
that makes the difficulty. The reign of law is the
same in both. In all branches of human interest
there has been going on this progress toward defi-
nite science, the accurate discovery and determina-
tion of regularity. Human conduct is slowest of all in
moving this way. It is still regarded most generally
as a special sphere, where the forces operative are
"free," and their behavior not constant or "subject
to necessity" as is that of stones and planets, fishes,
birds, and beasts. But the view taken here considers
moral laws to be of the same character as natural
laws. They express the invariable sequence of acts
and effects. Lying, theft, murder, adultery, and in-
cest are detrimental to the maintenance and strength
of human life. The laws are often very difficult to
discover, since the forces are partly psychical and the
complexity is so great. A thousand lines of antece-
dents and consequents are blended together in almost
every act. To separate and trace the lines is no easy
task. On many important matters opinion still dif-
fers. But law reigns; and it will be a fortunate day
for ethical science when there is general recognition
that human action is subject to the same uniformity,

252 CRIMINAL RESPONSIBILITY

regularity, or causal relation of antecedent and con-
sequent, as is the behavior of physical bodies, chemi-
cal agents, plants, and animals.

It will be seen that moral laws are thus under-
stood to be phases of natural law. The various
attempts of man to discover and to formulate them
are analogous to his attempts to discover and to
formulate other natural laws. The principles govern-
ing the variations between offspring and parents are
not yet known and stated. What laws regulate the
differences in a litter of puppies? The parents are
the same, and the conditions apparently alike. There
are thousands of such things not yet understood and
explained. Few of us doubt the reign of law there,
however, and if any one wishes to operate in this
realm he first undertakes to understand the laws, and
then acts accordingly. A horse breeder or a dog
breeder who wishes to secure products with certain
characteristics selects and mates individuals possess-
ing those traits, and continues the process among
their offspring. Moral laws are of similar nature.
There are many occurrences in human conduct which
are difficult to reduce to rule. The sequence of
causes and effects cannot be discovered. Of two
men with the same parentage, the same infancy, the
same youthful training, the same college education,
why should one be noble and the other base? The
moralist is unable to account for their unlikeness,
just as the biologist cannot yet explain the differ-
ences in the litter of puppies ; but he has no more right
to claim " freedom" or exemption from the operation
of law for these two sons than the biologist has to
offer " freedom" as the explanation (or, better,

AND SOCIAL CONSTRAINT 253

"cloak for ignorance") of the variations among the
puppies. Law reigns in both instances, even though
difficult to trace. And, really, men believe this. In
actual life they act upon the conviction that de-
terminate consequences follow determinate causes.
Otherwise why should they lay any importance upon
care in marriage, avoidance of imbecility, insanity,
and epilepsy, or upon the surroundings of childhood,
the education of youth, and the purification of the
social environment? Man's behavior is subject to
law the same as anything else. A moral act is a
"natural" phenomenon as truly as is the mating or
migrating of birds; and to inquire for causes and
effects is as appropriate in the one case as in the
other.

A correct moral law would be like an accurate
physical or biological law, and would express the
constant relation of cause and effect; only, in this
case the objects spoken of are human social beings
and their conduct. Moral laws have their foundation
in the nature of things, in the causal connections be-
tween actions and their effects upon life. The rea-
son that perjury and theft ought not to be is because
they cannot be without damage. These things can
occur only as "variations," "freaks," or "excep-
tions," just as such happen in the realm of biology.
Incest is a moral monstrosity, exactly as a calf with
two heads or five legs is a biological monstrosity.
The conditions of physical life being what they are,
the possession of two heads or five legs by a calf is
detrimental and unusual. The conditions of moral
life being such as they are, the commission of incest
is pernicious and abnormal.

254 CRIMINAL RESPONSIBILITY

The causal relation between antecedent and con-
sequent lies back of moral laws as truly as of any
other natural laws. If there were no regular con-
nection between acts and their effects upon the actor
and his environment, there would be no moral laws.
A moral law expresses the natural regularity be-
tween an act and its consequences for human life.

The objection may be raised, Natural laws operate
without exception; masses always move according
to the law of gravitation; but human beings do not
always act in the same way; in fact, they behave
hardly ever twice alike. Moral law says ' ' Thou shalt
not steal," but men do steal. Moral law demands,
"Thou shalt not commit adultery," but men do com-
mit adultery. Natural law does not command a stone
or a man, "Thou shalt not fall away from the earth's
centre." Natural law describes what always occurs;
moral law prescribes what ought to be done; there are
no exceptions to natural laws; exceptions are almost
the rule to moral laws.

Is this objection valid ? There are apparent devia-
tions from natural laws.1 Cloth "ought" to gravi-
tate toward the earth's centre; but when made into
a balloon and inflated with gas it rises instead.
Water "ought" to sink; but in a bottle that con-
tains both water and mercury it rises. The excep-
tions to moral laws are also only apparent. This

'Mill gives an excellent overthrow of "the popular prejudice
that all general truths have exceptions." "Rough generalizations
suggested by common observation usually have exceptions; but
principles of science, or, in other words, laws of causation, have
not." The "exception" to a "rule" is itself in accordance with law.
"There are not a law and an exception to that law, the law acting in
ninety-nine cases, and the exception in one. There are two laws."
For full discussion, see Mill, "Logic," book III, chap. 10, p. 293.

AND SOCIAL CONSTRAINT 255

man "ought" to be kind; but a pampered infancy,
youthful indulgences, brutalizing employment and
surroundings have made him cruel. That man
"ought" to respect human life; but a diseased
physical constitution, hereditary mental propensities
from degenerate grandparents, an insane mother,
and a syphilitic father, together with the influences
of a neglected childhood, evil surroundings and train-
ing have made him a murderer.

It is commonly said with the utmost confidence,
even by moral philosophers, that natural laws and
moral laws are different in that a natural law cannot
be violated while a moral law can. The moral law
says "Thou shalt," but the natural law says "Thou
must." For example, you cannot transgress the
law of gravitation, but you can transgress the law
of truthfulness; you unceasingly tend toward the
centre of the earth, but you are not always truthful.
What shall we reply to this ? The contention is false.
The moral law is wrongly expressed when thus jug-
gled with. The law of gravitation is stated correctly,
but the law of truthfulness is stated incorrectly:
the general law of gravitation is set in comparison
with a specific and conditional application of the law
of truthfulness. A statement of the law of gravita-
tion comparable to the moral law of truthfulness
"Thou shalt not lie" would be, "Thou shalt not jump
from a precipice." A statement of the law of truth-
fulness comparable to the law of gravitation "All
terrestrial masses tend toward the centre of the
earth" would be, "Lying tends to the diminution
and destruction of human life." These philosophers
show that one can disobey the imperative "Thou

256 CRIMINAL RESPONSIBILITY

shalt not lie" (either an arbitrary "unconditional
categorical dictate," or at most, a particular and con-
ditional application of a moral law), but they do not
prove that one can violate the moral law "Lying
tends to the diminution or destruction of human life,"
which alone may correctly be set in comparison with
the natural law of gravitation. A man may disre-
gard the moral law of truthfulness by telling a lie and
bearing the results; but just as truly he may act in
defiance of the natural law of gravitation by throw-
ing himself from a precipice and suffering the effects.
The consequences are sure in both cases; and neither
law is "violated " any more than the other. I accept
without investigation that both these laws have been
discovered to be real principles, instead of hypothe-
ses. As examples they show that a moral law is like
any other natural law so far as regards the possibility
of violation.

It is unfortunate that the practical moral proscrip-
tions "Thou shalt" and "Thou shalt not" pass cur-
rent as moral laws. They are as absurd expressions
of moral laws as "Thou shalt not bathe thy face in
sulphuric acid" and "Thou shalt not jump from a
precipice" are ridiculous as statements of chemical
and physical laws. All such recommendations are
merely practical applications to specific cases.

We may add a word concerning the other so-called
normative sciences, merely to say that neither are
they "normative" in the sense of being essentially
different from the so-called "historical" and "de-
scriptive" sciences. "Grammar tells us how men
ought to speak," "Logic tells us how men ought to
reason." These are more correctly expressed if we

AND SOCIAL CONSTRAINT 257

say "Grammar tells us how men must speak if they
are to have intercourse with one another and under-
stand one another," "Logic tells us how men must
reason, if they are to avoid error and contradiction in
their reasoning"; or, more briefly stated, "Ungram-
matical speech tends toward unintelligibility and
personal isolation," "Illogical reasoning tends tow-
ard contradiction and confusion of thought." If
these are real laws, they cannot be "violated" any
more than the natural law of gravitation. One can
"violate" a special rule or specific practical applica-
tion, like "You ought not to use double negatives,"
just as one can set at naught a specific practical ap-
plication of the law of gravitation, like "You ought
not to jump from a precipice." Even the State's
laws, originating apparently in the arbitrary wills of
men, are based in the last analysis upon natural laws,
upon the causal relations existing between modes of
human conduct and their effects upon life. Legal
ordinances owe their origin to the fact that the
prohibited acts have injurious effects upon society.
Thus even statutory law is grounded in natural law.

CHAPTER XVII
TRANSCENDENTAL FREEDOM

Seth, in acknowledging the "difficulties" which
the free-will theory encounters, says: "Recognizing
these difficulties, and regarding them as insuperable,
we may still accept freedom as the ethical postulate,
as the hypothesis, itself inexplicable, upon which
alone morality becomes intelligible. This is the
'moral method/ which some living thinkers share
with Kant."1

For Kant and his disciples freedom is not in the
world of phenomena; it is in the world of "noumena."
They admit that in the realm of phenomena there is no
freedom, but everything acts in accordance with the
laws of causation. They assert, however, that freedom
exists in a transcendental universe, a sphere above
the limitations of sense, space, time, and causation.

No one of these persons has accomplished his aim
of demonstrating either the reality of this freedom or
the necessity of postulating it. He may claim to
have transcended phenomena and the relations of
space, time, and causation; but as a matter of fact
these things continue to exist in his system in some
form or other. He merely doubles the facts that
need to be explained; or else he denies their "real-
ity." But to account for the world either by doub-
ling it or by denying it is not satisfactory.

1 Seth, op. cit., pp. 366 ff.
258

CRIMINAL RESPONSIBILITY 259

But I am not inclined to enter on argument concern-
ing the existence or non-existence of transcendental
freedom. I am interested only in the present world,
the world of matter and sense, of space, time, and
causation, the world of life and action, of love and
hatred, of social good and social evil, of human suf-
fering and human joy, the earth. About a tran-
scendental universe, a realm of "thing-in-themselves,"
"noumena," of existences of pure intelligence, — a
heaven or hell or Nirvana, — I am not in the least
concerned. If the advocates of free-will admit deter-
minism in "the world of phenomena," they may
claim " freedom " in the ' ' world of noumena. " If the
free-willist flees for refuge to that distant and doubt-
ful sphere of the noumena, he deserves the right of
sanctuary and exemption from attack by science.
Science or determinism (the same thing) can lay
down arms and enjoy the peace of the land.

The free-willist first tries to establish free-will be-
hind each action. Then he endeavors to place it
behind a whole series of actions, or behind the
character. Driven to the extreme, he locates it in a
transcendental world. There, however, we will leave
him alone, with his lifeless images of the dead.

PART III
RESPONSIBILITY FOR CRIME

CHAPTER XVIII
EARLY EXTREMES AND PRESENT PRACTICES

According to the theory of determinism, acts fol-
low of necessity from what has gone before. Then
how can it be just that a man should be punished for
deeds which could not have been different? The
ideas of crime and freedom are inseparable from the
idea of responsibility. We must therefore examine
this aspect of the problem.

The conception of responsibility has undergone
extensive evolution in the history of the various peo-
ples of the world. In primitive times, and among
savage tribes at the present day, practically all per-
sons, and even things, are held accountable. Every-
thing is considered to be animated; and anything
that does injury comes under disapprobation and
penalty. Even in civilized Athens there existed the
practice of holding inanimate objects liable. The
following regulation was prescribed by Plato in his
"Laws": — "If any lifeless thing deprive a man of
life, except in the case of a thunderbolt or other fatal
dart sent from the gods, — whether a man is killed
by lifeless objects falling upon him, or by his fall-
ing upon them, the nearest of kin shall appoint the

261

262 CRIMINAL RESPONSIBILITY

nearest neighbor to be a judge, and thereby acquit
himself and the whole family of guilt. And he shall
cast forth the guilty thing beyond the border." ■

Xerxes caused the Hellespont to be beaten with
three hundred lashes because it would not obey his
commands; and Cyrus " wreaked his vengeance" on
the river Cnydos by dispersing it through three hun-
dred and sixty channels.2

The practice of blood revenge was often extended
to the animal world. It was the custom of certain
Asiatic and African tribes that if a tiger killed some
one, the family of the victim was obligated to revenge
his death by the death of the tiger. Again, an alli-
gator was never slain unless it had killed some one;
in which case, its death was demanded. The inhab-
itants made yearly proclamation to the crocodiles,
warning them that the death of friends would be re-
venged, and admonishing the well-disposed croco-
diles to keep out of the way, as the quarrel was not
with them but only with their evil-minded relatives.3

Animals were not only exposed to the blood-feud,
but often to regular punishment. "According to
Hebrew law,- 'if an ox gore a man or a woman, that
they die: then the ox shall be surely stoned, and his
flesh shall not be eaten/ . . . Plato had undoubtedly
borrowed from Attic custom or law the idea which
underlies the following regulation in his 'Laws'; —
'If a beast of burden or other animal cause the death
of any one, except in the case of anything of that kind
happening to a competitor in the public contests, the

•Plato, "Laws," ix, 873/.

3 Cf. Herodotus, vii, 35; i, 190.

* Cf. Westermarck, op. cit., vol. I, pp. 252, 253.

AND SOCIAL CONSTRAINT 263

kinsmen of the deceased shall prosecute the slayer
for murder, and the wardens of the country, such, and
so many as the kinsmen appoint, shall try the cause,
and let the beast when condemned be slain by them,
and let them cast it beyond the borders. In vari-
ous European countries animals have been judi-
cially sentenced to death, and publicly executed, in
retribution for injuries inflicted by them. Advocates
were assigned to defend the accused animals, and the
whole proceedings, trial, sentence, and execution,
were conducted with all the strictest formalities of
justice. These proceedings seem to have been par-
ticularly common from the end of the thirteenth till
the seventeenth century; the last case in France
occurred as late as 1845. Not only domestic animals,
but even wild ones, were thus put on trial. . . .
There has been considerable diversity of opinion con-
cerning the purpose of inflicting punishments upon
animals. . . . But the true solution of the problem
seems simple enough. The animal had to suffer on
account of the indignation it aroused. It was re-
garded as responsible for its deed. In early records
the punishment is frequently spoken of as an act
of 'justice*. . . . From certain details we can also
see how closely the responsibility ascribed to ani-
mals resembled the responsibility of men. In some
of the texts of the Salic law the animal is spoken of
as 'auctor crinlinis., . . . Youth was a ground for
acquittal, as appears from a case which occurred at
Lavegny in 1457, when a sow and her six young ones
were tried on a charge of their having murdered and
partly eaten a child: whilst the sow, being found
guilty, was condemned to death, the young pigs were

264 CRIMINAL RESPONSIBILITY

acquitted on account of their youth and the bad
example of their mother. In Burgundy, a distinc-
tion was made between a mischievous dog that en-
tered a room through an open door and one that com-
mitted a burglary; the latter was a larron and was
to be punished as such. The repetition of a crime
aggravated the punishment. And the animal 'prin-
cipal* was punished more severely than the 'acces-
sories.' " ■

Lunatics and insane people were also considered
responsible, and were punished accordingly. "In
none of the German town-laws before the beginning
of the seventeenth century is there any special pro-
vision for the offences of lunatics. ... In Germany
recognized idiots and madmen were not seldom pun-
ished with great severity, and even with death, in
the seventeenth and eighteenth centuries. One of
the darkest pages in the history of European civiliza-
tion may be filled with a description of the sufferings
which were inflicted upon those miserable beings up
to quite modern times. Many of them were burnt as
witches or heretics, or treated as ordinary criminals.
For unruly and crazy people, who nowadays would
be comfortably located in an asylum, whipping-posts
and stocks were made use of. . . . The writings of
Esquirol, the parliamentary debates on the asylums
of Bedlam and York, and the reports presented under
the auspices of La Rochefoucauld to the National
Assembly of 1789, contain a picture unique in its
sadness — 'a picture of prisons in which lunatics,
criminal lunatics, and criminals are huddled together
indiscriminately without regard to sex or age, of

1 Ibid., vol. I, pp. 253-258.

AND SOCIAL CONSTRAINT 2b^

asylums in which the maniac, to whom motion is an
imperious necessity, is chained in the same cell with
the victim of melancholia whom his ravings soon goad
into furious madness, and of hospitals in which the
epileptic, the scrofulous, the paralytic and the insane
sleep side by side, — a picture of cells, dark, foul, and
damp, with starving, diseased, and naked inmates,
flogged into submission, or teased into fury for the
sport of idle spectators.' " * •

Thousands of persons were put to death on charges
of magic, sorcery, witchcraft, and other crimes as
unreal as these. The only shortcomings of these poor
beings were those of having a disordered nervous sys-
tem and of living in a time of profound ignorance.3

Little or no account was taken of circumstances,
or of the agent's character as inferred from past be-
havior, or of his real intention. Only slight, if any,
distinction was made between the good and evil
which an individual meant to do and that which he
happened to do. The working presumption of society,
up to a comparatively late stage of its history, was
that every harmful consequence was an evidence of
evil disposition in those who brought it about. Only
gradually did intent clearly evolve as an important
element in an act, and influence judgments of liabil-
ity.3

Responsibility and punishment were not limited
to the criminal. Family, relatives, friends, and even
all the members of the culprit's tribe were some-
times held liable. The strict limitation of accounta-

1 Westermarck, op. cii., vol. I, pp. 273, 274.

' Cf. Hamon, op. cit., p. 137.

* Cf. Dewey and Tufts, op. cit., pp. 459, 460.

jo CRIMINAL RESPONSIBILITY

bility to the author of a crime is not even yet fully
.accomplished. A vestige of these antique theories
is still seen in the army, where it is sometimes the
practice to punish a company, a battalion, or an
entire regiment, for the fault of some individuals.
Collective responsibility survives still in the relations
between nations. Thus an entire country is answer-
able for an act committed by one of its members in
certain cases, especially by a soldier. International
war is sometimes the result of this responsibility.1

The present attitude of criminal law toward re-
sponsibility may be epitomized from Kenny's "Out-
lines of Criminal Law " :

No external conduct, however serious or even fatal its con-
sequences may have been, is ever punished unless it has been
produced by some form or other of mens rea. ... In all
ordinary crimes the psychological element which is thus in-
dispensable may be fairly accurately summed as consisting
simply in "intending to do what you know to be criminal."
It admits, however, of a minuter description. Thus, in the
scientific analysis given by Professor E. C. Clark, it is shown
to require: —

(1) The power of volition; i. e., the offender must be able
to "help doing" what he does. This faculty is absent in per-
sons who are asleep, or are subject to physical compulsion or
to duress by threats, or whose conduct is due to accident or
ignorance; and it is also absent in some cases of insanity, of
drunkenness, and of infancy. Where it is absent, an immu-
nity from criminal punishment will consequently arise.

(2) Knowledge that what the offender is doing is criminal ;
either intrinsically, or, at any rate, in prospect of such conse-
quence as he has grounds for foreseeing. There will be an
absence of such knowledge in very early infancy, or in the case

p. 121

Cf. Bayet, "La morale scientifique," p. 146; Hamon, op. cit.,
L21.

AND SOCIAL CONSTRAINT 267

of some delusions as to the supernatural; and immunity, ac-
cordingly, will arise.

(3) In such crimes as consist of conduct that is not intrinsi-
cally unlawful, but becomes criminal only when certain conse-
quences ensue, there must further be the power of foreseeing
these consequences. . . . The power of foresight may be ab-
sent in infancy, even in late infancy; and in some forms of
insanity. ... In most cases the law regards the criminal act
itself as sufficient primd facie proof of the presence of this
mens rea. Every sane adult is presumed to intend the natural
consequences of his conduct. . . .

Mens rea, in some shape or other, is a necessary ele-
ment in every criminal offence. If this element be absent,
the commission of an actus reus produces no criminal respon-
sibility.

Blackstone's classification of the various conditions which
in point of law negative the presence of a guilty mind, has be-
come so familiar that it is convenient to adhere to it, in spite
of the defects of its psychology. Three of his groups of cases
of exemption deserve minute consideration. These are: I.
Where there is no will. II. Where the will is not directed to
the deed. III. Where the will is overborne by compulsion.

I. Where there is no will. . . . absence of will may be due
to any one of various causes. (1) Infancy. . . . There is a
conclusive presumption that young children cannot have mens
rea at all. Nothing, therefore, that they can do can make
them liable to be punished by a criminal court. ... (2)
Insanity. Absence of "will" may also arise . . . from a
morbid condition of mind. . . . The law has never held,
as a widespread popular error imagines it to hold, that
the mere existence of insanity is of itself necessarily suf-
ficient to exempt the insane person from criminal responsi-
bility. Only insanity of a particular and appropriate kind
will produce any exemptive effect. For lunatics are usually
capable of being influenced by ordinary motives, such as the
prospect of punishment; they usually plan their crimes with
care, and take means to avoid detection. . . . They are quite
capable of taking into account the chances of being or not be-
ing punished. . . . The world, it is now recognized, is full of

268 CRIMINAL RESPONSIBILITY

men and women in whom there exists some taint of insanity,
but who nevertheless are readily influenced by the ordinary
hopes and fears which control the conduct of ordinary people.
To place such persons beyond the reach of the fears which
criminal law inspires, . . . would be an actual cause of
danger to the lives and property of all their neighbors. Where
insanity takes any such form, it comes clearly within the rule
of criminal legislation propounded by Bain: "If it is ex-
pedient to place restrictions upon the conduct of sentient
beings, and if .the threatening of pain operates to arrest such
conduct, the case for punishment is made out."

The law therefore divides, and would seem to be fully justi-
fied in dividing, insane persons into two classes: — (a) Those
lunatics over whom the threats and prohibition of the criminal
law would exercise no control, and on whom therefore it would
be gratuitous cruelty to inflict its punishments; and (6) Those
whose form of insanity is only such that, to use Lord Bram-
well's apt test, " they would not have yielded to their insanity if
a policeman had been at their elbow." But the very difficult
practical question as to where the line of demarcation should
be drawn between the two classes, is one upon which the views
of English judges have undergone grave though gradual
changes, and even now cannot be said to have developed into
a complete or even a perfectly stable form. . . . The rule
broadly stated is or at least should be this, " that no act is a
crime if the person who does it is at the time when it is done
prevented, either by defective mental power or disease affect-
ing the mind, from controlling his own conduct, unless the ab-
sence of the power of control has been produced by his own
default. . . ."

(3) Intoxication. Drunkenness is ordinarily no excuse for
the commission of a criminal act; even though it have pro-
duced for the time as great an aberration of mind as would,
if caused by insanity, constitute a legal exemption from re-
sponsibility. For, closely akin though it is to a temporary
insanity, it differs from it by having been produced volun-
tarily. And to produce it, is morally wrong, and even a
criminal offence. ... It is thus a madness for which the
madman is to blame. ... If, however, a man's habits of

AND SOCIAL CONSTRAINT 269

drinking have resulted in rendering him truly insane, his
insanity, even though caused thus, will have just the same
effect in exempting him from criminal responsibility as if
his madness had not been so brought on by his own volun-
tary misconduct. Thus it has been held by Stephen, J., that
where delirium tremens caused by drink produces, although
only temporarily, such a degree of madness as to render
a person incapable of distinguishing right from wrong, he
will not be criminally responsible for acts done by him while
under its influence. Occasionally, however, instances arise
of a drunkenness to which no moral blame attaches; for
example, where it has been produced by the contrivance
of malicious companions, or by the administration of alcohol
for adequate medical reasons. So also where there was an
exceptional susceptibility to stimulants of which the person
was not aware and he became drunk by taking a moder-
ate quantity of spirits. It will be no defence, however, for
the person to say that he did not intend to get drunk. In
these rare cases, an actus reus committed by the intoxicated
man may involve him in no punishment; since it has been
preceded by no mens rea, neither the usual immediate one,
nor even the remote one of voluntarily getting drunk. . . .

II. Where the will is not directed to the deed. We may fairly
regard this state of mind as always arising from mistake or
some other form of ignorance (e. g. taking from the hat-stand
in your club another man's umbrella in mistake for your own).
. . . Our criminal law often allows mistake or ignorance to
afford a good defence by showing, even where there has been
an actus reus, that no sufficient mens rea preceded it. But
such a defence can only arise when three conditions are ful-
filled. (1) The mistake must be of such a character that, had
the supposed circumstances been real, they would have pre-
vented any guilt from attaching to the person in doing what
he did. ... It will be no offence to lay violent hands upon a
person whom you reasonably, though mistakenly, suppose to
be committing a burglary. ... (2) The mistake must be a
reasonable one. This will be mainly a question of fact. The
jury, assisted by the judge's directions, must determine the
reasonableness of the mistake, that is, whether the prisoner's

270 CRIMINAL RESPONSIBILITY

conduct was what would be expected of the man of ordinary
caution and prudence under like circumstances. ... (3)
The mistake, however reasonable, must not relate to matters
of law but to matters of fact. For a mistake of law, even
though inevitable, is not allowed to afford any excuse for
crime. . . .

III. Where the will is overborne by compulsion. (1) Pub-
lic civil subjection . . . will occasionally constitute a defence.
Thus when violence is exercised by a jailer or hangman in
carrying out an invalid sentence. ... (2) Private civil sub-
jection . . . only in the case of conjugal subjection, ever
amounts to a defence. For if a wife commits any ordinary
crime in her husband's actual presence and by his instructions,
she is regarded by the law as having committed it under such
a compulsion as to entitle her to be acquitted. ... (3) Ne-
cessity. The fact that a man who has inflicted harm upon
another's person or property did so for the purpose of ward-
ing off from himself some much greater harm, has from early
times been recognized as a defence in civil actions, brought
to recover compensation for the harm thus inflicted.1

1 Kenny, "Outlines of Criminal Law," American edition, chaps.
Ill and IV, "The Mental Element in Crime," and "Exemptions
from Responsibility," pp. 35-71.

CHAPTER XIX

ARGUMENTS FOR COMPLETE IRRESPONSI-
BILITY OF ALL CRIMINALS

Schopenhauer called "the hardest of all prob-
lems" the following: "How is it that there is such
an enormous difference between one character and
another? — the malicious, diabolical wickedness of
the one, and set off against it, the goodness of the
other, showing all the more conspicuously. How is
it that we get a Tiberius, a Caligula, a Caracalla, a
Domitian, a Nero; and on the other hand, the An-
tonines, Titus, Hadrian, Nerva? How is it that
among the animals, nay, in the higher species, in in-
dividual animals, there is a like difference? — the
malignity of the cat most strongly developed in the
tiger; the spite of the monkey; on the other hand,
goodness, fidelity, and love in the dog and the ele-
phant. It is obvious that the principle of wicked-
ness in the brute is the same as in man." l A scien-
tifically trained person would hardly answer this
question by asserting either that the difference is due
to chance or that it is due to "freedom of choice" on
the part of the individuals (the selection would but
express an already existing goodness or badness).

The person who denies responsibility says, The
criminal is not responsible for his act. It is the in-
evitable result of determinate motives acting upon

1 Schopenhauer, "On Human Nature," p. 100.
271

272 CRIMINAL RESPONSIBILITY

a certain mental disposition. Throughout the whole
series, necessity rules. Nothing could be different
from what it is. His mentality is the work of neces-
sity. The motives that affect it are unalterably oc-
casioned. The criminal is not personally responsible.
You must search farther back for the causes of his
acts. He is only the intermediary in the accomplish-
ment of his deeds. We should no more condemn a
bad man than a poisonous plant.

There is really no culpability or moral blamewor-
thiness on the part of wrongdoers. In criminals we
must see only creatures of misfortune, sick people,
persons damned by heredity or anatomical predesti-
nation, victims of mental obsessions and nervous dis-
organizations. The bond between the physical and
the mental is seen by physiologists and psychologists
to be very close. The notion of culpability must dis-
appear from society as scientifically unsound.1

Crime is the effect of physical, anthropological, and
social conditions acting simultaneously and insepara-
bly to determine the act. Notice briefly the deter-
mining influence of each of these factors.

The will is subjected to the influences of physical
agents. Volitional energy is considerably affected by
influences of the natural environment. It varies in
each individual under the influence of heat, cold,
storm, humidity, dryness, electric condition of the
atmosphere, light, climate, altitude, geology, vegeta-
tion. It is dependent on the nutrition of the brain,
which in turn is connected with the conditions of the
nourishing liquid, the blood, — its composition and

1Cf. Tarde, "Etudes penales et sociales," essai sur "L'idee de
culpability " p. 321.

AND SOCIAL CONSTRAINT 273

circulation. Every cause which increases or dimin-
ishes the pressure of the blood, modifies the will.
Alcohol, coffee, tea, tobacco, opium, morphine, are
such causes. Absence of sunlight provokes anaemia
and tuberculosis, and depresses the nervous system.
Excessive light is a powerful excitant which may alter
the nervous system. The same person has not the
same will in the light as in the dark, other things be-
ing equal. Willing is affected also by heat and cold.
The blood-vessels expand or contract; the pulse beats
fast or slow; the brain is bathed in blood that is
changed more or less rapidly. The same is true with
reference to the air breathed; — its composition,
pressure, humidity, and electric state all modify the
circulation and chemical properties of the blood.
The brain is nourished by a liquid of varying com-
position and of diverse rates of circulation. Con-
sequently, volition, a function of the brain, varies
according to the nutrition of that organ.1

Criminal volitions sometimes result from anthropo-
logical or individual abnormalities. Moral and in-
tellectual irregularities may be caused by physiologi-
cal disturbances in digestion and assimilation, by
diabetes, gravel, retention of urine, gout, rheumatism,
excessive fatigue. Every physiological condition in-
fluences the vigor and rapidity of the mental proc-
esses, and consequently, of the will. It produces
either a state of nervous vigor or a state of nervous
depression. This last state may proceed to complete
absence of volition. Will may be extinguished the
same as memory, intelligence, or any other function
of the central nervous system. We all know how

1 Cf. Hamon, op. cit., pp. 31-34.

274 CRIMINAL RESPONSIBILITY

our wills are affected by difficult digestion. The
brain is less nourished, the blood going to the stom-
ach, which has the greatest need of it at this time.
The manner in which food is assimilated plays a part
in influencing the will. The abnormal accumulation
of toxins in the organism exercises a powerful dis-
turbance upon the functions of the nervous system.
This action is variable in its intensity and in its mani-
festations according to the duration of the action of
the toxins and the greater or less resistance of the
organism.1

In many cases, at least, crime must be considered
the result of some form of mental derangement.
Lunacy was, for a very long time, not regarded as
affording immunity from punishment. Many judges,
even, maintained that insanity could not lessen re-
sponsibility unless the criminals were totally unable
to distinguish between right and wrong at the mo-
ment when their misdeeds were committed. The
work of Maudsley and more recent students of ab-
normal psychology has led to the general recognition,
among people of reflection, that crime is, in numerous
instances, the direct result of mental alienation or dis-
solution. The logical test of insanity, "not knowing
the difference between right and wrong," is simply
absurd. The lunatic may know the distinction as
well as any one else. Besides, the medical world has
long since given up the idea of a sharp line of division
between the sane and the insane. At what degree
do indecision, irritability, sorrow, and emotional dis-
turbances pass over into mental abnormality? We
all have our periods of indecision; but we send a per-

1 Qf. ibid., pp. 35, 39, 161.

AND SOCIAL CONSTRAINT 275

son to a physician if he passes hours in agonizing
perplexity without being able to decide whether to
change his shirt to-day or to-morrow. It seems nor-
mal to us to be sad upon the loss of a dear friend, and
to be discouraged over failures; but we regard any-
body as diseased who commits suicide in order to
escape the perplexities to which we are all sub-
jected.1 There are innumerable stages between the
absolutely normal and the absolutely insane. The
lunacy of many criminals is not recognized at the
time of their conviction, but only later on. Prison
statistics show that the proportion of prisoners who
are adjudged insane is very large, and that the pro-
portion of prisoners who come of demented or epilep-
tic parents is still many times larger.

Now it is absurd to believe that only those crimi-
nals who are wholly insane are necessitated to their
crimes by their affliction. Every kind of mental
weakness or derangement supplies its quota of crime.
Man's action is certainly conditioned in large part by
his material organism. Faults of character depend
frequently upon physiological accidents. The dis-
position of a person may be totally changed by even a
slight injury to the brain, or by habitual use of drugs
and alcohol, or by disease that becomes chronic. A
little softening of a square inch of the cortex may
make a man a kleptomaniac, while a small patch of
inflammation in the brain may give one homicidal
tendencies.2 Do such persons nevertheless have a
" freedom of the will" that makes them responsible
for their actions?

1 Cf. DuBois, op. cit., p. 67.

* Cf Hollander, " Crime and Responsibility."

276 CRIMINAL RESPONSIBILITY

We cannot rightly expect or demand common-sense
and normal morality from these deficient beings.
The criminal is mentally and morally defective. It
is unreasonable to punish him; he is not responsi-
ble. We must all recognize the fact that many an
offender is a born criminal, whose physical and psy-
chical proclivities lead inevitably to crime. Certain
truths like these simply have to be admitted, no
matter how much they conflict with prejudices and
pet dogmas about freedom of the will. It is obvious
to anybody that there are criminals who, by hered-
ity, are predisposed to crime, — individuals whose
selfish tendencies predominate over altruistic mo-
tives, and whose abnormal mentality will lead them
into wrong-doing as soon as propitious circumstances
present themselves.

Basing their investigations on anthropology, medi-
cal science, psychology, and psychiatry, criminolo-
gists have called to our attention the fact that very
many criminals have abnormalities in the structure
and development of the brain. There are anomalies
in the tissue, in the convolutions, and in the develop-
ment of the various parts of the brain, together with
irregularities in the cranial cavity. Criminality is
often found to be related to atavism, to arrested
growth of the brain, to disease of the tissue, to epi-
lepsy, and to degeneracy. Is it possible that people
afflicted with great malformations and alterations of
the brain should have the same sentiments as men
with brains entirely normal?

In setting forth the different kinds of insane crimi-
nals, Ferri said that this category includes all the
intermediary types between complete madness and

AND SOCIAL CONSTRAINT 277

a rational condition. These offenders are the per-
petrators of terrible crimes without motive, attacks
upon persons in authority, sexual outrages, purpose-
less destruction of property, and similar atrocious
deeds.1 In describing the " born or instinctive crimi-
nals," he said that they are the ones who most fre-
quently present the organic and physiological char-
acteristics established by criminal anthropology; they
are either savage and brutal, or crafty and lazy; they
draw no distinction between homicide, robbery, and
other crimes, on the one hand, and honest industry,
on the other; they are not at all affected by punish-
ment, but regard it as an ordinary risk of their oc-
cupation; they are the natural recidivists, returning
to prison again and again, with a frequency depend-
ing entirely upon the brevity of the separate incar-
cerations and the quickness of capture after each
return to crime; they are the delinquents who illus-
trate most clearly the folly of the legislators who per-
sist in permitting this continual round of inefficacious
punishments and repeated crimes.2

It seems, also, from the discoveries of abnormal
psychology, that exemption should be accorded to
those affections which, like hystero-mania and neu-
rasthenia, have been called the borderland of insan-
ity. The modern science of psychiatry is leading___
people to recognize that in addition to that familiar
kind of aberration which impairs a man's judgment,
there are other and subtler forms which affect his
will, either by weakening his natural inclinations or
by inspiring abnormal impulses. These may be

• Cf. Ferri, op. cit., pp. 27, 28.
■ Cf. ibid., pp, 28-30.

278 CRIMINAL RESPONSIBILITY

called "affective" types, to distinguish them from
the better known "intellectual" types of insanity.1
Ever since Lombroso called attention to the an-
thropological similarities between criminals and de-
generates and neurotics, there has been a steadily
growing recognition of the kinship between these
abnormal forms. We have no hesitation in adopt-
ing stringent measures against delinquents, be-
cause they are so obviously anti-social. But in the
case of degenerates and neurotics, we are less cer-
tain that they are anti-social, and hence we are less
severe. We do not know how to deal with them, —
whether to handle them roughly or to care for them
tenderly in an infirmary. The question comes up
imperatively, however, in the frequent cases where
these abnormal persons come into conflict with jus-
tice by committing offences against the public order,
acts of violence, and even murder.
■" The present legal practice distinguishes between
complete irresponsibility and partial responsibility.
It holds many insane persons responsible for their
acts, believing that their insanity affects only a cer-
tain part of their mental life. It seems to regard the
individual's cerebral apparatus as divided into two
sharply distinct departments, the one wholly sane,
the other wholly insane. It attempts to decide
whether a particular act derives its origin from the
sane or from the insane portion of consciousness.
Those acts which show reflection, long deliberation,
and careful planning are judged to proceed from the
sane part ; those which are impulsive or purposeless,
from the insane part. The effort is to prove that

1 Cf. Kenny, op. cit., p. 53.

AND SOCIAL CONSTRAINT 279

such and such a criminal act proceeded not from the
insane part, but from the sane part, and conse-
quently entails responsibility. Such an endeavor is
an attempt to show that a crime was an act of good
sense on the part of the insane person! All this is a
false procedure. It is absolutely impossible to show
that insanity affects one part of life or one line of be-
havior or one set of relations, but has no influence
upon any other matters. It is impossible to prove
that insanity along one line of ideas or one line of
action does not react upon all the mental and voli-
tional life of the person afflicted. It is an error to
think that a person is not completely insane if some
of his conceptions and acts agree with facts and show
intelligence, deliberation, and purpose. If any one
is proved insane in certain aspects, his insanity ex-
empts him from responsibility not only in those as-
pects, but in all. There is no such thing as partial
responsibility or attenuated responsibility. Who can
show that a brain insane in some of its parts nev-
ertheless functions in its other parts in the way it
would function if it were wholly sane? f

Epileptics should be considered to be absolutely
exempt from responsibility. With an epileptic a
convulsive attack may be replaced by an attack of
acute insanity, under the sway of which the afflicted
person may kill, with total lack of attention or in-
tention, the first person who comes in his way, and
may then recount his crime with as little concern
as though it were the most insignificant act in the
world. The epileptic is absolutely irresponsible; be-
cause his malady arises from a brain in which there

1 Cf. Hamon, op. cit., pp. 184-188.

280 CRIMINAL RESPONSIBILITY

are certain anatomical lesions which produce a men-
tal state that is profoundly defective and disordered.1

A person is not an indivisible unity. Investiga-
tors in abnormal psychology tell us of many cases
where there exist several distinct personalities in
one individual. Such individuals have a plurality of
memories, a plurality of consciousnesses, a plurality
of wills, — the phenomena of each of the person-
alities being distinct from the phenomena of the
others. Each personality is ignorant of what goes
on in the others.2 Such abnormal beings cannot be
held accountable.

Another set of persons who are completely irre-
sponsible are those under the obsession of " fixed
ideas." An idea implants itself in the mind, domi-
nates all others, overmasters all functions of the
mind and directs them toward the realization of this
all-powerful and violent idea. Any crime may easily
be committed in this condition; because no other
idea can originate or develop sufficiently to inhibit
action. Many crimes have been committed by per-
sons under the domination of some one idea which
overrode anything and everything that stood in the
way of its accomplishment. Such persons are not
answerable for their acts.3

Responsibility cannot be attributed in those cases
where a crime has been committed under the lead of
an excessively preposterous motive. There are in-
stances of the sway of a perfectly ridiculous motive,
showing clearly some mental derangement. A man

1 Cf. ibid., pp. 153, 154.

8 Cf. Ribot, "Les maladies de la personnaliteV' "Les maladies
de la mdmoire," "Les maladies de la voIonteV'
* Cf. Hamon, op. ciL, p. 155.

AND SOCIAL CONSTRAINT 281

killed his room-mate because he snored too loudly.
A gentleman of wealth killed his daughter because
she was growing so large as to occasion increased ex-
penditure for clothes. A servant girl poisoned some
children in order to have an occasion to go out on
the street on the way to the physician and the drug-
store. A devoted mother, under pressure of poverty,
drowned her two children "because it was the best
thing she could do for them." The absurdity and
folly of the motives in such cases as these prove de-
mentia and irresponsibility.1

Accountability cannot attach to those persons who
commit crimes in a fit of passion, or as the result of an
emotion so sudden and violent that the best intention
in the world would be powerless against it. Further,
alcoholism must be considered in general as a phjrs-
iological defect, removing liability. Accumulating
evidence is leading scientists more and more to regard
the alcoholic, especially the hereditary alcoholic, as a
diseased person, and, on account of his malady, pre-
disposed to crime, and irresponsible.2 When we
think of the proportion of crime chargeable to alco-
holism, we realize how large a part of crime will be
declared exempt from liability when alcoholism is
regarded as nullifying responsibility.

1 Cf. Hamon, op. cil., pp. 158, 159; Kenny, op. cit., p. 51.

3 See Reid, "Alcoholism; a Study in Heredity." This book is an
application of the Weismann doctrine of heredity to the facts of
alcoholism. There is no hope for temperance reform through the
abolition of drink; the only hope is through the elimination of the
drunkard. Every race is temperate strictly in proportion to its
past sufferings through alcohol. Alcoholism will have to be eradi-
cated from human nature through the regular ways of selection,
natural and artificial. Natural selection is working against alcohol-
ism . . . "the fittest to survive" are the temperate. Men can
assist the process through selective mating.

282 CRIMINAL RESPONSIBILITY

There are also certain pathological conditions
connected with sex which induce extraordinary con-
duct and nullify the responsibility therefor. Science
has proved certain mental troubles to be caused by
puberty, menstruation, pregnancy, change of life, and
by certain sexual abnormalities, perversions, and in-
versions. Everywhere now there are many persons
considered irresponsible who would have been judged
responsible a few decades ago. Before arriving at
the present result, how many thousands of demented
persons have been condemned and executed.1

It appears, then, that we must all admit that the
sphere of responsibility is considerably restricted by
these findings of criminal anthropology. Wherever
action is determined by pathological conditions, there
cannot be "freedom," "responsibility" and "punish-
ment." Undoubtedly, the anthropological charac-
teristics of many persons are such as to lead in-
evitably to wrong-doing. But these elements do not
account for all the crimes committed. There are
many offences which the criminal anthropologist
cannot persuade us are due to some abnormality or
anomaly in the constitution of the offender. Perhaps
"responsibility" may take possession of these. The
criminal anthropologist has driven it out of all that
domain of crime which is ruled by the inexorable
necessity of anatomical and physiological defective-
ness in the transgressors. Possibly it may find a place
of settlement elsewhere, and establish itself free from
attack. We find, however, that this is not the case.
The criminal sociologist comes to complete the work
of destruction begun by the criminal anthropologist.

1 Cf. Hamon, op. tit., pp. 142, 149, 150.

AND SOCIAL CONSTRAINT 283

He maintains that crimes not attributable to sources
in the individual are to be assigned to causes in
society. Social arrangements are productive of
much wrong-doing. In fact, some sociologists main-
tain that these influences preponderate in the genesis
of crime. They declare that the delinquent is the
product of society. If this assertion be true, then of
course "responsibility" must be charged not to the
offender but to society. Lacassagne said that socie-
ties have the criminals they deserve. In other words,
the number of criminals in any community is in direct
proportion to the social forces that make for crime.
A similar belief led Ferri to enunciate his famous
"law of criminal saturation" — "Just as in a given
volume of water, at a given temperature, we find a
solution of a fixed quantity of any chemical sub-
stance, not an atom more or less, so in a given social
environment, in certain defined physical conditions
of the individual, we find the commission of a fixed
number of crimes." l By this law Ferri meant to
assert, not a mechanical regularity of crime, but a
fixed proportion between a given environment and
the number of crimes. The element of fixity con-
sists, not in a fatal predestination of evil deeds, but
in their necessary dependence upon their natural
causes; and this implies the possibility of modifying
effects by modifying the activity of the causes.2

The social factors of crime, according to Ferri,
comprise "the density of population; public opinion,
manners, and religion; family circumstances; the
system of education; industrial pursuits; alcoholism;
economic and political conditions; public adminis-

1 Ferri, op. tit., p. 76. a Cf. ibid., pp. 80, 81.

284 CRIMINAL RESPONSIBILITY

tration, justice, and police; and in general, legisla-
tive, civil, and penal institutions." '

Tarde is a great champion of the sociological ex-
planation of crime. The sovereigns of the kingdom
of evil, according to him,2 are Imitation and Heredity,
— the greater power in the production of crime
being exercised by imitation. The nature of crime
is explained by the nature of the mutual influence of
persons grouped together. In an aggregation of men
a psychological fermentation takes place. Social
psychology is illuminating for an understanding of
how the contagion of crime works. Criminals live
together in groups, and imitate one another. They
are influenced by mutual suggestion. From the in-
dividual of vicious character there goes out through
the group a contagious propagation of evil influ-
ence. Suggestion and imitation are certainly very
great forces in the propagation of crime in a com-
munity.

We realize, in some measure, at least, how social
conditions lead to crime, when we reflect on our in-
effective legal and judicial procedure, with its uncer-
tainty, slowness, leniency, and short sentences; our
faulty penal system, which places young offenders,
first offenders, and petty offenders in the same insti-
tution with old and incorrigible criminals, thus mak-
ing of the prison a veritable school of crime; our de-
fective administration of relief to the destitute, and
to the victims of accident, misfortune, and calamity;
our inadequate educational system, which, by its
lack of flexible adaptation to the various dispositions

1 Ibid., p. 53.

aCf. Tarde, "Etudes penales et socialea," pp. 268, 295-305.

AND SOCIAL CONSTRAINT 285

of its pupils, and its remoteness from the actual
interests and needs of many of them, tends to
drive them directly toward truancy and vagrancy;
our corrupting political practices of bribery and graft;
our savagely competitive regime of industry with
its depressions and crises; our demoralizing domestic
life in broken, incompetent, and vicious homes; our
toleration of prostitution with its street solicitation;
our open gambling resorts and gin palaces; our im-
properly conducted arrangements for receiving, dis-
tributing, and assimilating immigrants; our fright-
ful overcrowding of the masses; our child-labor; our
employment of pregnant women right up to the
day of their delivery and again within a week of their
confinement; our poverty that prevents education,
trade training, and industrial opportunities; our
hunger and misery that necessitate crime for the sup-
port of self and children; our sensational press, which
acts as a stimulus to wrong-doing through the in-
fluences of suggestion and imitation, and sows the
contagion of crime broadcast in society; our morbid
literature, indecent shows, and immoral sports; our
freedom in forming marriage unions among epilep-
tic, feeble-minded, insane, scrofulous, and venereally
diseased. In the light of such facts, who can
doubt that society itself calls into existence beings
without either physical or moral strength, people
subject to uncontrollable whims and anti-social im-
pulses?

We must surrender that old conception according
to which men are divided, as it were essentially, into
two classes: one the blameworthy and the other the
meritorious. We must recognize that many crimi-

286 CRIMINAL RESPONSIBILITY

nals are made such by the pressure of environment
and education, of poverty and miserable living, of
extraneous suggestion and stimulation. We must
perceive that the evil character is often moulded
by the influence of depraved surroundings. Under
slightly different circumstances the offender might
have been a decent member of society. The youth
brought up in criminal surroundings takes to crime
as naturally as a duck takes to the water. We
must awake to the fact that the responsibility for
wrong-doing ought to be attributed to those who
failed to provide education in right-doing, and neg-
lected to see that the temptations to crime were
removed.1

Why hold the criminal liable? His act was the in-
evitable result of certain motives acting on a partic-
ular mental disposition. If you are seeking some-
thing to punish, you must look beyond his will,
because it was determined by irresistible motives;
beyond the motives, because they were made by de-
sires, passions, physiological inheritance, education.
The causes of the criminal's behavior lie back of him
in his ancestors and in the environing society. The
"responsibility" and the "punishment" for his deed
must therefore be distributed among these sources.
Society is itself to blame for a great part of crime.
Instead of punishing the criminal, it ought to pity
him. It has made him what he is. It should now
take him and do the best it can to amend him, in-
stead of wreaking vengeance upon him. Either the
criminal is capable of being improved, in which case
it is very doubtful that punishment is the best means

1 Cf. Dewey and Tufts, op. cit., p. 469; Alexander, op. cit., p. 341.

AND SOCIAL CONSTRAINT 287

of accomplishing it, or else he is not susceptible to
amendment, in which case it is senseless to administer
corrective discipline, just as it is unreasonable to
punish idiots and insane.

Society as a whole has largely contributed to
create the criminal; and if fault there be we are all
responsible. "Does it watch with sufficient love
over the human nursery? Does it work with zeal
to cure the sickly nurslings and to preserve the
others from contagion? Evidently not. . . . Society
ought to recognize more and more that if vicious
people exist it is because it allows material, intellec-
tual, and moral destitution to exist in the cases of
thousands of individuals. Society is still a negligent
stepmother who has only herself to blame if her
children wander away. She ought to recognize her
fault, and if, to reform the transgressor and prevent
new misdeeds, she is obliged to be severe, she ought
to be so with love, and with education as the only
aim in view. . . . Have we, then, the right to criti-
cize others? No; we have only one duty, and that is
to pardon and stretch out our hands to those who
have fallen." l

After all these exemptions from responsibility have
been made, how large is the share left to it? What
murderers are there who commit their crimes neither
as the result of physiological infirmities, nor under the
overmastering control of some mental defect, nor as
the inevitable product of social maladjustments and
misery? What wrongdoer cannot prove himself to
be a "born criminal " and "criminally diseased," a
victim of his physical constitution, or to have been

1 DuBois, op. cit., pp. 67, 74.

288 CRIMINAL RESPONSIBILITY

rendered wayward by bad training and evil associ-
ates?

The constant efforts of criminal anthropology and
sociology have steadily enlarged the field of irre-
sponsibility. How far will this procedure of deny-
ing accountability extend? To declare crime ex-
cusable when occasioned by physiological defect,
a fit of passion, or extreme misery, what is this but
to recognize that whenever there is discovered a
cause other than "free-will," there is no right to pun-
ish? Is it not now evident that all criminal activity
is subject to laws as inflexible as those that regulate
the falling of a stone? What matters it whether the
influences be sociological, physiological, or psycho-
logical? A cause is none the less a cause, whether
it be external or internal. After all, the distinctions
here are only arbitrary. There is no force purely
sociological or purely psychological. These but
represent different points of view for the sake of con-
venience. By taking account of the facts accumu-
lated by science, — facts concerning heredity, educa-
tion, and environment, social conditions and mental
infirmities, — the juridical customs founded on "re-
sponsibility " will be overthrown. ' ' Moral " obstruc-
tions will be removed; and scientific practice and
procedure may advance.1

Xerxes caused the ocean to be lashed because it
would not do his bidding. We in our day laugh at
his simplicity. But we condemn the criminal to be
beaten because he does not obey our commands.
Future generations may laugh at our folly. We are
aware that the movements of the sea are governed

1 Cf. Bayet, op. at., pp. 149, 150.

AND SOCIAL CONSTRAINT 289

by fixed principles. Coming generations will know
that the acts of the criminal are under the sway of
determinate laws. Is the "brain storm" any less
subject to law than the tempest on the ocean? l

• Cf. ibid., p. 178.

CHAPTER XX

CONTRAST OF MORAL CONSIDERATIONS
AND SOCIAL EXPEDIENCY

How can liability coexist with the general law of
cause and effect. It is commonly held that belief in
accountability is inconsistent with the notion that
the human will is determined by causes. Seth main-
tained that determinism and responsibility are in-
compatible, and used this as a " moral argument"
against acceptance of determinism. "To reduce
crime to a pathological phenomenon, is to sap the
very foundations of our moral judgments; merit as
well as demerit, reward as well as punishment, are
thereby undermined. Such a view may be scientific ;
it is not ethical, for it refuses to recognize the com-
monest moral distinctions." l Leslie Stephen well
summed up this position as follows: "Moral re-
sponsibility, it is said, implies freedom. A man is
only responsible for that which he causes. Now the
causa causae is also the causa causati. If I am caused
as well as cause, the cause of me is the cause of my
conduct; I am only a passive link in the chain which
transmits the force. Thus, as each individual is the
product of something external to himself, his respon-
sibility is really shifted to that something. The
universe or the first cause is alone responsible, and
since it is responsible to itself alone, responsibility

1 Seth, op. tit., p. 315.
290

CRIMINAL RESPONSIBILITY 291

becomes a mere illusion." ■ According to Martineau,
"either free-will is a fact, or moral judgment a delu-
sion " ; if determinism were true, human beings would
be no more proper subjects of responsibility than are
inanimate things; and "the application of praise and
blame" would be "in itself as absurd as to applaud
the sunrise or be angry at the rain." "To reduce the
moral sentiments to a policy providing for the future,
instead of a sentence pronounced upon the past, is
simply to renounce them; and amounts to a con-
fession that they cannot coexist with a theory of
necessary causation." 2 "Owen and his followers —
from a recognition of the fact that volitions are
effects of causes, have been led to deny human re-
sponsibility. . . . What they denied was the right-
fulness of inflicting punishment. A man's actions,
they said, are the result of his character, and he is not
the author of his own character. It is made for him,
not by him. There is no justice in punishing him for
what he cannot help." s

These citations illustrate the generally prevalent
recognition that the admission of determinism deals
a death-blow to the theory of moral accountability
founded on freedom of the will. Now we may as well
admit that this is the conclusion to which our reason-
ing leads us. The facts of determinism are so plain
as to be absolutely convincing, and to force us to ac-
cept all the implications. If the notion of "moral
responsibility" is incompatible with determinism,
as it really seems to be, we are prepared to throw

1 Leslie Stephen, " Science of Ethics," p. 273.
'Martineau, "Types of Ethical Theory," 3d edition, vol. II, pp.
41,42.
"Mill, op. cit., p. 586. Cf. "Utilitarianism," p. 128.

292 CRIMINAL RESPONSIBILITY

away that conception. We are certainly not inclined
to follow the example of those moral enthusiasts who,
though every fact in the universe testified to the cor-
rectness of determinism, would nevertheless postu-
late " freedom" for the sake of saving " responsibil-
ity." We prefer to relinquish it, in the belief that
truth cannot possibly bring more harm to man than
error.

We are what we cannot but be, under the deter-
mining conditions. We are the inevitable resultant
of the various forces in operation. Consequently, no
one can reasonably be reproached for being what he is,
for he could not be different. No one can be blamed
for defective morality any more than for having
been born idiotic, blind, hunchback, or club-footed.
Qualities of character, instead of depending on the
individual, really form the individual. Whether a
man shall be Apollo or Thersytes, savant or clown,
saint or sinner, does not depend upon his free personal
choice. A criminal is no more morally responsible
for his immorality than he is for birth-marks or natal
deformities. Universal determinism being the scien-
tific truth, moral responsibility does not exist. A
being that is invincibly obliged to be what it is can-
not be held responsible for not being different. A
bowlder that crashes down a mountain-side, carrying
destruction with it, is not held morally accountable.
A tiger that attacks and kills a man is not said to be
morally blameworthy. A man is as much an automa-
ton as a rock or a tiger; and cannot justly be es-
teemed free to act otherwise, than he does.1

The old ideas of "freedom," "responsibility," and

1 Cf. Hamon, op. cit., pp. 229, 230.

AND SOCIAL CONSTRAINT 293

"punishment" must be given up. It now scarcely
admits of question that every criminal act is an effect
of causes either in the constitution of the individual
or in the organization of society which make the
crime necessary and inevitable. Since every wrong-
ful deed proceeds from a person who is, temporarily
or permanently, in a more or less abnormal condi-
tion, " punishment" is without justification. A mon-
strosity should not be "punished" for acting accord-
ing to its monstrous nature. The old conception of
legal penalties was founded on belief in the normality
of the criminal: he was a normal person who had
chosen to act abnormally — a fruit-tree, as it were,
that had decided to bear thistles — and it was the
business of the penologist to apportion the exact
amount of retribution due for this free, though ex-
traordinary behavior. Little or no regard was paid
to the varying natures of evil-doers; they were re-
garded as constant factors. Punishment was directed
at the offences; it did not consider the offenders at
all. On the whole, it has seemed better — at once
sounder theoretically and more convenient practi-
cally — to discard this antiquated notion of punish-
ment. Many scientific thinkers and investigators
are showing a disinclination to talk of "punishment,"
and are preferring to speak of "the social reaction
against crime." Whenever an antisocial deed oc-
curs, there is an inevitable social reaction against
the person who committed it. Society gives him to
understand that there must not be a repetition of the
harm. To accomplish this, it acts according to its
wisdom. Social reaction in a crude form lynches the
criminal; in a highly developed stage, it bestows

294 CRIMINAL RESPONSIBILITY

elaborate training and education upon him, as at the
Elmira Reformatory. The reaction against crime
is a solid and permanent fact in the nature of man
and society; and is independent of all metaphysical
theories. It is this which should direct a scientific
treatment of the criminal.1

The questions of "moral freedom/' "moral re-
sponsibility," and "moral punishment " are not of the
slightest consequence to social well-being. If a man
"freely" wills to be antisocial, it is the right and the
duty of society to defend itself from him. On the
other hand, if he "necessarily" wills to be anti-
social, then it is equally the prerogative and the
obligation of society to protect itself against him.
Society has a just privilege and a bounden duty to
preserve itself in all cases. All men, whether free or
not, are answerable to it for their deeds. Social
accountability is the only accountability with which
society is rightly concerned. The questions of moral
responsibility and moral freedom are of no social con-
sequence. Society is interested in what kind of ac-
tions, social or antisocial, the individual actually wills
and performs, but not at all in whether he could have
willed differently. Punishment founded on moral
responsibility must be replaced by punishment based
on the dangerousness of the criminal to society. The
people who think that on account of the non-exist-
ence of freedom of choice, and on account of the in-
evitableness of all the acts of a man, no criminal
ought to be punished, start from a wrong conception
of punishment.

Social accountability must not be confused with

1 Cf. Ellis, "The Criminal," pp. 295, 296.

AND SOCIAL CONSTRAINT 295

the notion of moral blameworthiness. The only task
of human justice is to prove the dangerousness of the
individual to society. The burden of religious re-
sponsibility should be left to the individual con-
science; that of transcendental responsibility, to
metaphysics. Justice dictates the duty of doing
everything it can to oppose antisocial acts, to
prevent their occurrence, if possible, and, at any
rate, to hinder their repetition, and to repair the
harm that has been done.1

With the social aspects of punishment most people
mix up moral and religious considerations which pre-
suppose the "liberty" of the criminal. In judging
antisocial acts, the effort is too often made to esti-
mate more or less exactly the part played by liberty,
in the belief that a will freely bad is the only possible
justification of punishment. But whether we accuse
the antisocial individuals of being morally bad or
not, the natural relations of things render necessary
the employment of force against them, and oblige
us to defend the interests of all against the violence
of some. We may go back beyond the particular
offender and locate the moral blame elsewhere.
Nevertheless, regardless of metaphysical specula-
tions, the determinists may justify punishment of
damage-doers on the grounds of human utility, or
social vindication. And this purely human and social
justice does not need to depend on "the absolute."
It finds a sufficient basis in social facts as they are
in themselves.

1 Cf. DuBois, op. cU., p. 73.

CHAPTER XXI

ASSERTION OF THE CRIMINAL'S SOCIAL
RESPONSIBILITY

If we admit that criminality is the inevitable re-
sult of necessary causes, and that the criminal is not
" morally accountable" for his deeds, does this mean
that all repressive measures are to be abandoned by
society, that assassins and thieves are to be left
at large, and that prisons are to be thrown open?
No. Repression of crime is as "necessary " as crime.
The acceptance of the doctrine of the malefactor's
irresponsibility means simply that the character of
punishment is to be modified. Punishment is to be
solely and exclusively a means of social protection
and of amelioration. To announce that wrong-doing
is an effect under recognizable laws is not to declare
that the wrongdoer is to be placed in a kind of
palace or earthly paradise. The life of society's
criminals should not be made sweeter, easier, and
pleasanter than the life of society's laborers. The
criminally "diseased" and "incurable" are to be
treated as sick persons, indeed, but not with luxury
and deference.1

It is wrongly believed that the simple fact of cat-
aloguing crime among the regular phenomena of
sociology involves exemption from responsibility and
punishment. If it is normal that there should be

1 Cf. Bayet, "La morale scientifique," pp. 153, 154.
296

CRIMINAL RESPONSIBILITY 297

crimes, it is also natural that crimes should be pun-
ished. The words "responsibility" and "punish-
ment" are questionable, to be sure; but it is certain
that the social reaction against crime is a fact nor-
mally connected with crime.1

Acceptance of the doctrine of determinism does not
mean that we must stand and look on in passive im-
potence as harmful deeds take place. There is a
social responsibility which authorizes society to re-
press crime, or, better, to prevent it. The solidarity
of human interests requires society to do what it can
for the security of the social order. A vicious animal
is not thought to possess "freedom of will," but is
nevertheless "punished"; and if extremely danger-
ous, is put to death. It is not a moral fault in a
snake to possess venom. Nevertheless it is hu-
manly and socially undesirable; and we kill a snake
without pity, simply because it is dangerous to men.
For wolves and lions to be carnivorous is certainly
natural and proper; but it is also necessary and right
for man to destroy them for his own safety. Exactly
similar is the justice with which society exercises a
rigorous selection and extirpation of those human
individuals who violate the interests and endanger
the existence of the others. The "wild beast of a
man" must be restrained or eliminated.2

It is said that punishment is based on responsibil-
ity, and that determinism is a flat denial thereof. A
distinction must be made, however, between social
and metaphysical accountability. A man does

1 Cf. Durkheim, "Le suicide," p. 415.

7 Cf. Royer, "Actes du deuxieme congres d 'anthropologic crimi-
nelle, 1890"; quoted by Hamon, op. tit., p. 231.

298 CRIMINAL RESPONSIBILITY

something inimical to the good of society; he knows
what he does and foresees the harmful effects upon
others. Punitive suffering is inflicted in order that
when he thinks of repeating the deed, the idea of the
consequent affliction will be a sufficient motive to
restrain him. The punishment must be given to the
agent. The harm was done by him. It matters not
that he is the victim of bad heredity and environment
and that his act was the necessary result of previous
events. The tangible and corrigible source of evil
is in himself. If a man is sick it is to him that the
medicine is given, and not simply to the environment
that caused his sickness. If the disease is contagious
the man is confined, — his liberty is taken away from
him. In this sense, social "responsibility" is im-
puted to him. The treatment is not regarded as a
chastisement for moral depravity, but as a precau-
tion dictated by considerations of social utility.
Similarly, penal " medicine" may be given to the
criminal; his liberty may be taken away from him.
But such treatment should be considered not as pun-
ishment for moral depravity, but as rendered neces-
sary by the demands of social well-being. For the
protection of society he must be cured of his ailment,
or at any rate prevented from injuring others. The
punishment is administered to bring about the right
order of thoughts and ideas, and to cause him to ab-
stain from harmful action whenever the occasion
arises again. If he says, "I could not help it — I
deserve indulgence and pity," we reply, Of course.
We do not blame you. We do not regard you as a
moral reprobate. Nevertheless, this pity and knowl-
edge of your moral irresponsibility does not keep us

AND SOCIAL CONSTRAINT 299

from endeavoring to prevent a recurrence of the harm.
We shall try to cure you of propensities to injure
others, by causing you to undergo a certain amount
of suffering. The idea and fear of pain will restrain
you the next time you are tempted. When the crimi-
nal performs an act contrary to the general welfare,
it shows that motives of respect for the social good
are not strong enough in him. Punishment is in-
flicted in order to strengthen these motives, and to
give him additional cause to control his passion.
Crime is the result of improper functioning in the
criminal's mind. Even though this derangement be
determined, and attributable to inheritance and bad
education, the immediate cause is in the individual
himself, and may be reached and remedied by the
application of the proper treatment. If the desire
for pleasure gets the mastery over consideration for
others' property and interests, the receipt of punitive
suffering will strengthen respect for others' rights,
and will make evident to the criminal that the wish
for pleasure if heedlessly gratified brings about pain.
Thus responsibility, according to determinism, is not
"moral" but is intellectual, physical, social. It de-
notes the capacity of being made to produce the social
effects desired. Whenever this faculty exists in an
individual, he is accountable. "Free" or not, man
is capable of being influenced through his mind and
body. The justice of penal responsibility is a ques-
tion of social efficacy, and not of moral legitimacy.
Social utility is the prime interest.1

Under our present practices it is frequently a mat-
ter of great moment whether a criminal is insane or

1Cf. Fouiltee, "La liberty et le cteterminisme," pp. 39-42.

300 CRIMINAL RESPONSIBILITY

not. But whether a man is mentally deranged or not
is largely a matter of definition. And even with the
best definition we cannot always be certain that a
given person comes within its scope. Moreover, it is
difficult to see why it should make so much difference
whether a damage-doer is insane or not. Why
should grave interests of social and individual safety
and well-being be made to hinge on a problem which
must often be insoluble? It cannot make any prac-
tical difference whether a transgressor is sane or in-
sane. Demented or not, he is dangerous, and society
must protect itself from him. Lunatic or normal,
society must treat him humanely, and must use all
means in its power to render him capable of living
a social life. The question of sanity is immaterial,
either to society or to the offender. To speak
of insanity as a "defence," is both unreasonable
and antisocial. Mental derangement is an explan-
ation, but not a defence. Lunacy involves a loss
of self-control, a giving way to impulse. Now, every
one knows that self-control may be educated, that
it may be weakened or strengthened by experience.
If we accept insanity as a "defence," we are di-
rectly encouraging vice and crime, by removing the
strongest influence in the formation of self-control.
When a "defence" of kleptomania was brought be-
fore an English judge in a case of theft, he ob-
served: "Yes, that is what I am sent here to cure."
We need not hesitate to accept this conception of the
function of the court, provided that the treatment be
scientific, effectual, and humane.1
When we declare the insane person to be morally

* Cf. Ellis, op. cit., pp. 355-357.

AND SOCIAL CONSTRAINT 301

irresponsible for his deeds (that is to say, incapable
of having refrained from committing them), we cer-
tainly do not mean to imply that he cannot be held
socially accountable for them, or that his malady
gives him the right to perpetrate crimes with im-
punity. So far as concerns moral responsibility, we
are quite willing to admit that all acts are caused and
could not be other than {hey are. And we are dis-
posed not to stop at insanity and epilepsy, but to ex-
tend moral irresponsibility to hysteria, neurasthenia,
and even headache or toothache. Nevertheless, the
recognition that every event has a sufficient cause
and could not have been different does not lead us to
the absurd conclusion that a man is not accountable
to society for his behavior. On the contrary, it in-
duces us to affirm that every one, whether absolutely
normal or profoundly insane, is answerable to his fel-
lows for his every act. The question of mental de-
rangement is a matter of consideration in determin-
ing the most appropriate treatment to be given by
society, but does not at all affect the matter of social
accountability.

Responsibility has no independent existence of its
own in the mental constitution of men, so that the
degree of responsibility might vary according to the
degree of mentality. It is a purely social relation.
It is established and maintained by men living to-
gether. If any man lived entirely apart from other
men, he would have absolutely no responsibility,
altogether regardless of his mental normality or
abnormality. His state of consciousness would of
course exist even though he were isolated from all
other human beings. His conceptions and actions

302 CRIMINAL RESPONSIBILITY

might be in perfect agreement or in total disagree-
ment with the facts of his environment. But re-
sponsibility would not exist. On the other hand, a
man living in social relations is accountable for his
acts, regardless of his mental state. Accountability
is a purely social affair, and applies to all men living
in social relations. It is not in the least affected, re-
moved, or attenuated by insanity, epilepsy, or other
anthropological abnormality of the individual. We
cannot emphasize too much this independence of the
two conceptions, mentality and responsibility. Re-
sponsibility applies to all men living in society, re-
gardless of their state of consciousness.

Society has the right to defend itself against injury.
In order to do this it may rightfully make use of any
means best adapted for it. It may enact laws and
may attach penalties thereto, and may carry out the
threatened penalties in case the laws are infracted.
It does this not because man has freedom of will
and is morally responsible for his acts, but because he
is determined by motives and because the threat of
pain for certain actions is an efficacious way of pre-
venting these actions. The man impelled by anti-
social tendencies maybe restrained by fear of personal
suffering. His natural inclinations would certainly
be satisfied if not met and counteracted by the
prospect of consequent pain. Avarice, sexual desire,
brutal selfishness, cruel impulses demand satisfaction.
But the legal penalties convince intelligence that the
satisfaction of pernicious inclinations will entail loss
of the criminal's property, liberty, or life ; and they
thus succeed in restraining from undesirable conduct.
It is absurd to say that no penalties should be threat-

AND SOCIAL CONSTRAINT 303

ened against harmful actions and no punishments
awarded for their occurrence, inasmuch as all acts
occur of necessity and could not be otherwise. Pen-
alties and punishments are efficient causes in the
production of behavior. An individual of vicious
propensities may be caused to behave properly in
view of the penalties that exist for crime. Without
legal threats the perverse disposition would be un-
able to restrain itself. " Freedom" and "moral re-
sponsibility" are not necessary to found the attempt
to intimidate. And when "freedom" and "moral
responsibility" are relinquished, we do not have also
to abandon penalties and punishments. Even many
insane and demented persons are susceptible of con-
trol through threats.

The legal penalties will deter some possible offend-
ers from harmful deeds; but will be unable to restrain
certain other criminals. Are the latter, then, socially
irresponsible, because their hereditary and acquired
traits drive them inevitably into crime? Not in the
least. They are socially responsible, just as all men
are socially responsible. No one is morally respon-
sible for his deeds, in the sense that he is free to do
or not to do them. Every one is socially responsible
for his behavior, in the sense that society will deal
with him in a manner which his behavior indicates to
be necessary for social protection. The dishonesty
of the thief and the forger, the brutality of the rapist
and assassin, the insanity of the demented, are all in-
dividual, personal attributes or qualities, and make
it right for society to treat such persons in the way
that is best for the general social well-being; just as
the honesty, benevolence, and beneficence of good

304 CRIMINAL RESPONSIBILITY

men entitle them to the esteem and benefactions of
their fellows. Moral responsibility for an act sup-
poses an ability to have acted differently. Social
responsibility makes no such supposition. It cares
nothing about it. It simply adopts the social treat-
ment of a person according to his banefulness or
beneficence for the general good. Society may
properly quarantine any one afflicted with a con-
tagious disease; a fortiori, it may rightly exclude
from its midst a vicious pervert. The safety of the
people is the supreme law for society. Penal, cor-
rective, and preventive treatment has a purely social
foundation and justification.

The old theory of accountability was dependent up-
on belief in free-will. To have been responsible was
thought to mean to have been able to act differently
from the way one actually did act. The doctrine of
free-will has now, among most thinking persons, given
place to the more scientific view of determinism.
Thus with the disappearance of the notion of free-
will the old idea of accountability is left with nothing
to rest on, and is forced to give way to a newer con-
ception. The modern scientific doctrine is this:
Every individual is socially accountable for his
deeds; and social responsibility is the only responsi-
bility with which society is rightly concerned. So-
ciety has the right and the duty of preserving itself.
To do this it must hold every one, whether sane or in-
sane, answerable for his behavior. The words "re-
sponsibility" and "punishment" are not good ex-
pressions of the present conceptions; and ought to
be abandoned as soon as better terms can be found.
The facts are these: Every harmful deed naturally

AND SOCIAL CONSTRAINT 305

provokes a social reaction; and this manifests itself
in repressive, curative, and preventive treatment, in
quarantine, therapeutics, and prophylaxis, applied
not only to the offender, but also to the causes that
produced his acts. The true nature of the social
reaction against crime is well seen if instead of speak-
ing of crime and punishment we speak of offence and
defence. The case may be illustrated by society's
defence against the insane. Up to about a century
ago the social reaction against the demented took
the absurd form of hatred, punishment, and con-
tempt. This proved both unreasonable and in-
effective; and was finally abandoned. These un-
fortunates are no longer held blameworthy for their
character and action, or deserving of scorn and
abuse. Nevertheless, they are subjected to restraint
and to special treatment, for the public safety. The
time has now come to do for the criminal what has
been done for the insane. Madmen and criminals are
both recognized as belonging to the same great and
terrible family of abnormal, degenerate, antisocial
persons. Both are socially answerable in the same
way, and just as is every other person. Responsibil-
ity means that a man must suffer the consequences
of his deeds. The reaction against antisocial be-
havior is a primary and inevitable fact of all social
life. But it must be made reasonable, efficacious,
and humane. We may ameliorate the conditions
that produce injurious action; we may treat the anti-
social person in such a way that he will cease to be
so, and in the last resort we can place him where he
will be unable to act out his mischievous impulses.
We may do all this without any reference whatever

306 CRIMINAL RESPONSIBILITY

to moral guilt or moral responsibility. The sole con-
sideration is the good of society.1

Society has the right to defend and to conserve it-
self. Every one is socially responsible for the effects
of his actions upon his fellows. He is responsible
because he lives in a society in which his acts produce
effects which react upon him in a beneficial or harm-
ful manner according as they have been useful or in-
jurious to society. Every act produces effects upon
society and a reaction upon the actor. Every man
experiences, therefore, of necessity, the'natural con-
sequences of his actions. He is thus held " account-
able " in a way wholly natural, and is made to answer
solely because he is the author of his deeds. Thus,
naturally, "every one acts at his own risk or peril,
whatever be his state of consciousness." To the di-
verse modes of action there correspond diverse modes
of reaction. We have no need of the conceptions
"freedom" and "moral responsibility," which stand
for imaginary things which do not exist. It suffices
that there have been acts which are in disagreement
with the will and interests of society, entailing of
necessity reactionary consequences upon the doer.
Protective reaction is the inevitable consequence of
harmful action. It manifests itself in suppressive,
correctional, and preventive treatment, — a treat-
ment addressed not simply to the immediate cause,
but also to the more remote causes, and intended as
a therapeutic and hygienic measure.2

Paulsen has some passages on this subject of social
accountability that are so good as to deserve citation

1 Cf. Ellis, op. tit., 363-367.

2 Cf. Hamon, op. tit., pp. 233-237.

AND SOCIAL CONSTRAINT 307

almost in full. "To refer evil to causes means to
shift the responsibility upon these causes. But, it
must be added, this does not alter our feelings, our
judgment, and our attitude toward the worthless and
evil individual. To be sure, we should say, noth-
ing good can come from such a source; but this
would not mean that the product, base though it
may be, was pure and guiltless, and that we should
treat it as such. Our judgment of the worth of a
person depends upon what he is, not upon how he
became so, and our attitude toward him depends on
the same thing. . . .

"As to whether society has the right to punish, or
whether it is not itself the guilty and responsible
party. . . . We may reply to this: It is quite true;
society is guilty and therefore liable to punishment,
it produces individuals with criminal tendencies, it
also creates temptation and opportunities for crime.
But is society not punished? Is not, in the first place,
the crime itself a punishment which it suffers? The
person against whom the offence is committed is as
much a part of society as the criminal. And the feel-
ing of fear and insecurity caused by the crime is a
further punishment. And the punishment itself,
which is inflicted upon the criminal, is an additional
punishment: when he suffers, a member of society
suffers, the member, namely, through whom it has
sinned. And finally, society as a whole suffers the
punishment which it inflicts; for is it not a punish-
ment for a nation to watch, to support, to clothe, and
to employ many thousands in penitentiaries and
prisons at enormous expense? Ought society to be
punished in other ways? Shall all the others, with

308 CRIMINAL RESPONSIBILITY

the sole exception of the criminal as the only inno-
cent party, be punished? Or what do these wonder-
ful people mean? . . .

"Some one, however, disturbed by such psycho-
physical speculations, might argue as follows: Well,
after all, the same remarks apply to insanity. If we
regard and treat this as a brain disease, why not do
the same with other abnormal states? The criminal
impulse of the thief or incendiary must be explained
scientifically, as an inherited or acquired predis-
position of the brain, and hence the person thus
afflicted must be treated as diseased. Our answer
would be : We can certainly look at the matter in this
way; the impulse to commit arson is an abnormal
tendency of the brain, likewise the impulse to steal;
and of course, the impulse of the boy who wantonly
destroys his playthings, or of the little girl who an-
noys her parents and teachers by her carelessness and
fickleness, all these, too, are to be regarded as ab-
normal or diseased predispositions of the brain.
But, now draw the conclusions. We attempt to cure
diseases with the remedies which experience has
found to be efficacious. If the physician can heal
the insane by dietaries and shower-baths and medi-
cines, very well ; and if he can also cure those afflicted
with the impulse to commit arson with the same or
similar remedies, very well; we shall be glad to place
such persons under his care, as well as the bad boy
whose pranks annoy us. But in case his remedies
prove unsuccessful here, let him not hinder us from
trying other cures, especially such as have stood the
test of experience; for example, for bad boys a nat-
ural remedy that grows on the hedges. And in case

AND SOCIAL CONSTRAINT 309

he cannot reach the impulse to steal or the impulse to
destroy, by the remedies of the apothecary, let him
allow us in the meantime to continue the use of an
old remedy which, though not absolutely sure, has
nevertheless met with a certain degree of success as
an antidote against such impulses; that is, the prison
and the penitentiary. So soon as he discovers a
more certain, simpler, less roundabout and expensive
specific, we shall be glad to dispense with these dis-
agreeable and inadequate cures of ours. — But why
do you not treat the maniac in the same way, why
do you not bring him before court, and sentence him
to jail when he commits a crime? — We should cer-
tainly do so if we believed that the treatment em-
ployed by judges and prison-guards would produce
better results in his case than that applied to him
and others similarly afflicted, by physicians and
nurses. In the meanwhile, we are of the opinion that
to subject him to the process of the criminal law
would make no impression upon him, would have no
such influence upon his future behavior as the rod
has upon the boy, or the penitentiary has — at least
occasionally — upon the thief and his possible suc-
cessors. Besides, we certainly do place the insane
person under restraint when he becomes dangerous
to himself or to others, and protect ourselves against
him, so far as we can, as much as against the thief.
"Indeed, it is a very strange procedure, first to
explain criminal impulses as diseases, and then to
conclude from this that nothing ought to be done
against them. Against diseases we employ all rem-
edies that help, even though they burn and smart." '

1 Paulsen, op. cU., Bd. I, S. 454-460, tr. ThiUy, pp. 461-467.

CHAPTER XXII
BASIS OF PERSONAL ACCOUNTABILITY

Without freedom of the will, what becomes of
merit and demerit, and how shall we establish the
legitimacy of punishment? Afflictive penalty may
be necessary as a means of social defence, but is it
just? To this query we reply by asking, What is
"merit"? In brief, "merit" implies "social value,"
and nothing but that. It is not at all affected by the
question of free-will. Thus the legitimacy or justice
of punishment or reward consists in the proportion
between the social value of the agent and the fortune
which society assigns to him.

What, in general, is meant by responsibility? Re-
sponsibility indicates liability of punishment. When
we have the feeling of being responsible for our ac-
tions, the idea of being subject to penalty for them is
uppermost in our mind. Whoever has an essential
disposition to wrong-doing becomes a natural object
of the active dislike of his fellows, if they discover it.
He not only forfeits the benefit of their good-will
and beneficence, except when their compassion is
stronger than their dislike for him; but he also ren-
ders himself liable to whatever they may think
necessary to do in order to protect themselves against
him; which will probably include actual punishment,
and will surely involve much that is equivalent. In
this way, he is certain to be made accountable to his

310

CRIMINAL RESPONSIBILITY 311

fellow men, through the normal action of their natu-
ral sentiments. This practical expectation of being
made to answer for actions has a great deal to do with
the internal feeling of being accountable; a feeling
which is seldom found existing in any strength in the
absence of that practical expectation. Oriental des-
pots, who cannot be called to account by anybody,
have little consciousness of being morally responsible.
In societies in which caste or class distinctions are
really strong, it is a matter of daily experience that
persons may show the greatest sense of moral obliga-
tion as regards their equals, who can make them ac-
countable, and not the least trace of a similar feeling
toward their inferiors who cannot.1

Every day the ordinary individual recognizes merit
and demerit. What criterion does he use in distin-
guishing what deserves praise or blame from what
does not? What common mark attaches to all those
actions for which the untutored moral consciousness
holds the doer accountable? The natural mind holds
a man responsible for what he himself did; it relieves
him of responsibility for what he was compelled by
some superior power to do. If a desperado places a
pistol at my head and forces me to sign my name to a
pernicious libel, I am not held to account for the libel,
because it was strictly not mine, but that of the villain
who threatened me. What I did was to sacrifice a
certain duty for the sake of saving my life. For that
alone I am responsible. This principle of responsi-
bility is the same in all other cases, though in the
questions of real life it may become infinitely com-
plicated. The fundamental principle, however, is

1 Cf. Mill, op. cit., pp. 586-588.

312 CRIMINAL RESPONSIBILITY

always this : A man is responsible for what he himself
does. This stakes the case of responsibility for an act
upon a simple and intelligible inquiry, Was this man
really the doer of the act in question? 1

A harmful act, then, for which the culprit is socially
amenable; is one that is expressive of the self of the
agent. A person is held liable only if his action is re-
garded as caused by his own will or nature. If his
arm or his foot gives a push to us, and we are con-
vinced that the push was neither intended nor fore-
seen nor due to any carelessness on his part, we can-
not feel angry with him. We make a distinction
between a part of his body and himself as a volitional
being, and think that he is not a proper object of
resentment when the cause of the hurt was merely his
arm or his foot. An event is attributed to him as its
cause only in proportion as it is regarded as having
been brought about by his will ; and he is considered
a proper object of resentment only as an intentional
cause of pain. We do not resent hurts received from
animals, little children, or madmen, when we recog-
nize their inability to judge of the nature of their acts.
They are not the real causes of the resulting mischief,
since they neither intended nor could have foreseen
it. We cease to be angry if we discover that he who
injured us acted under compulsion, or under the in-
fluence of a non- volitional impulse, too strong for any
ordinary man to resist. Then, the main cause of the
hurt was not his will, conceived as freely acting. It
yielded to the will of some one else out of necessity,
or to a powerful impulse which forms no part of his

1 Cf. Scott, in International Journal of Ethics, April, 1910, pp.
332. 333.

AND SOCIAL CONSTRAINT 313

real self. He was but an instrument in another's
hand, or he was "beside himself." Full responsi-
bility presupposes freedom from non-volitional pres-
sure, and, particularly, freedom from external com-
pulsion. When a person's will is compelled by a
power outside him, he cannot be held to account for
what he does under the influence of that constraint.
He is answerable only for what is due to his will.1

By degrees punishment is coming to be recognized
as simply a measure of social precaution. But this
precaution must consider, besides the act and its
motives, the underlying will. From the fact that a
judge never has to ask himself whether a crime is
morally or metaphysically free, it does not follow that
he may ever neglect to examine with what amount of
attention and intention, or with what degree of con-
scious will, it has been accomplished. This will,
whatever its ultimate metaphysical nature may be,
is mechanically a force whose intensity should enter
into social calculations. It is simply the character,
— the system of tendencies of every sort which the
individual customarily obeys and which constitute
his moral self, — or the resistance which the individ-
ual's reserve of interior energy is capable of present-
ing to antisocial inducements. The consideration of
the punishing authorities will always bear, not solely
upon the discovery of what influences determined
the given deed, but also upon the character of the
accused. Their judgment will regard, not simply mo-
tives and impulses, but the person (who is only a com-
plicated system of motives and impulses counteract-
ing each other and forming a more or less stable

1 Cf. Westermarck, op. cit., vol. I, pp. 315-324.

314 CRIMINAL RESPONSIBILITY

tendency to action). Even though there exists no
moral responsibility, but purely a social responsibili-
ty, the individual is answerable, not only for the par-
ticular antisocial act and the motives that led him to
it, but also for his nature. And it is this that punish-
ment should seek to improve. Juries always judge
the person, letting themselves be influenced by good
or bad antecedents; and in principle they are not
wrong. An act is never isolated, but is a symptom.
The social sanction should bear upon the entire in-
dividual.1

With reference to social responsibility a distinc-
tion must be made between acts caused by intellect-
ual necessity and those produced by physical con-
straint. We are responsible for the first, but not for
the second. If any one is compelled by external
force to do a criminal deed, he cannot be punished
without feeling the treatment unjust. But if the in-
fluence that determines him is in his brain, an internal
necessity of desires, interests, motives, then punish-
ment for the crime will be recognized as just. A man
does not shift the responsibility for his misdeeds from
himself to the motives in consequence of which the
deed necessarily took place. For he knows very well
that this necessity has a subjective condition, and
that so far as the objective conditions are concerned,
under the same circumstances and under the influence
of the same motives an entirely different act, even the
very contrary of his own, could have taken place, if
he had been different. Here lies the whole blame. It
was because he had such and such a character, that

1 C/.~Guyau, "Esquisse d'une morale sans obligation ni sanction,"
pp. 214, 215.

AND SOCIAL CONSTRAINT 315

no other action was possible. The circumstances did
not produce the action of themselves. Motives and
acts are merely an index or expression of the funda-
mental nature, the unalterable direction of the will,
the "character." Responsibility for a deed, there-
fore, must be borne by the man himself.

There are persons who declare that on the basis of
determinism, the rightfulness of inflicting penal suf-
fering must be denied. They say: "A man's actions
are the result of his character, and he is not the
author of his own character. It is made for him, not
by him. There is no justice in punishing him for
what he cannot help." Now is it really unjust for
determinists to punish a criminal for actions which
were inevitably necessary? The decision of the ques-
tion rests on the nature of the causes which made it
impossible for him to behave otherwise. If they were
foreign to his own nature, if they were independent
of his own will, if they were some form of external
physical constraint, then truly it would be unjust to
make him answer for the deed. The laws of practi-
cally no country subject a man to penalty for what he
was compelled to do by immediate danger of death.
But if the causes of his action were internal and in-
herent in his own nature, if they depended upon his
own will or character, if they led to a deed expressive
of himself, then it is perfectly just to punish him for
"what he could not help." No malefactor will feel
that because his wrong-doing was the result of defi-
nite motives, operating upon a certain mental dis-
position, it was not his own fault. It was at all
events his own defect or infirmity, for which punish-
ment is the appropriate cure. The particular kind of

316 CRIMINAL RESPONSIBILITY

defect or infirmity which he has displayed, — insuf-
ficient love of good and aversion to evil, — is in
every one's mind the standard of fault.

Thus, to the free-willist's argument that because
the criminal cannot refrain from his wrongful deed it
cannot be just to subject him to penalty for doing it,
the determinist replies that the expectation of being
punished for committing a crime does enable most
persons to keep from it, and is precisely the best
means by which to give them this ability. To say of
a certain man that he cannot help committing a
crime, is true or false, according to the qualification
attached to the assertion. Supposing the man to be
of a vicious disposition, he cannot abstain from mis-
conduct, if he is allowed to believe that he will not
be called to account for it. But if, on the contrary,
he is made to know that he will be severely punished,
he can, and in most cases does, help it. So the ques-
tion, "How can punishment be justified if man's ac-
tions are determined by motives?" is not very per-
plexing when we bear in mind that the punishment
itself is intended to become one of the determining
influences. The really puzzling and unanswerable
question is, "How can punishment be justified if
man's actions are not determined by motives?" If
punitive treatment could not act on the will and in-
fluence future conduct, it would be illegitimate, no
matter how natural the inclination to inflict it. In
so far as the will is regarded as free, that is, as capable
of acting against incentives, penalty is inefficacious
in governing the will and is unjustifiable. If the
man's will and behavior are supposed to be beyond
the reach of inducements, there remains no reason

AND SOCIAL CONSTRAINT 317

for inflicting pain upon him, since that pain, by sup-
position, cannot possibly operate as a deterring mo-
tive.1

Social accountability, then, is perfectly compatible
with determinism, — indeed, even with the most
exaggerated form of fatalism. "Suppose that there
were two peculiar breeds of human beings, — one of
them so constituted from the beginning, that how-
ever educated or treated, nothing could prevent
them from always feeling and acting so as to be a
blessing to all whom they approached; another, of
such original perversity of nature that neither educa-
tion nor punishment could inspire them with a feel-
ing of duty, or prevent them from being active in
evil doing. Neither of these races of human beings
would have free-will; yet the former would be hon-
ored as demigods, while the latter would be regarded
and treated as noxious beasts : not punished perhaps,
since punishment would have no effect on them, and
it might be thought wrong to indulge the mere in-
stinct of vengeance; but kept carefully at a distance,
and killed like other dangerous creatures when there
was no other convenient way of being rid of them.
We thus see that even under the utmost possible ex-
aggeration of the doctrine of Necessity, the distinc-
tion between moral good and evil in conduct would
not only subsist, but would stand out in a more
marked manner than now. . . . A human being who
loves, disinterestedly and consistently, his fellow
creatures and whatever tends to their good, who hates
with a vigorous hatred what causes them evil, and
whose actions correspond in character with these feel-

1 Cf. Mill, op. tit., pp. 591, 592, 599, 600.

318 CRIMINAL RESPONSIBILITY

ings, is naturally, necessarily, and reasonably an ob-
ject to be loved, admired, sympathized with, and in
all ways cherished and encouraged by mankind; while
a person who has none of these qualities, or so little
that his actions continually jar and conflict with the
good of others, and that for purposes of his own he is
ready to inflict on them a great amount of evil, is
a natural and legitimate object of their fixed aver-
sion, and of conduct conformable thereto: and this
whether the will be free or not, and even indepen-
dently of any theory of the difference between right
and wrong. . . . What I maintain is, that this is a
sufficient distinction between moral good and evil:
sufficient for the ends of society and sufficient for the
individual conscience; that we need no other dis-
tinction; that if there be any other distinction, we
can dispense with it; and that, supposing acts in
themselves good or evil to be as unconditionally de-
termined from the beginning of things as if they were
phenomena of dead matter, still, if the determina-
tion from the beginning of things has been that they
. shall take place through my love of good and hatred
of evil, I am a proper object of esteem and affection,
and if that they shall take place through my love of
self and indifference to good, I am a fit object of
aversion which may rise to abhorrence." l

We say that a man who commits a crime under
hypnotic influence is not responsible for his act.
Now if the hypnotized person is not accountable
for his deeds, how can we hold an ordinary person
liable? The latter's acts are all caused by sugges-
tions received from parents, teachers, associates,

1 Ibid., pp. 589-591.

AND SOCIAL CONSTRAINT 319

books and newspapers. In short, he is caused to per-
form his acts as truly as the hypnotized person.
How can we consider the one responsible, the other
not? What is the difference? There is a funda-
mental distinction. The behavior of the hypnotized
person does not represent his character, his will, him-
self. The suggestions received produce action imme-
diately, without being incorporated by the character.
But the suggestions received by the ordinary person
do not produce action immediately; they go through
a long process of naturalization; they must be as-
similated by the ideas, habits, associations, desires,
purposes, which are already present in the character.
They have to become an integral part of the disposi-
tion; and then c^n exercise only their proportionate
influence in deter nining coi^ict. The act of such a
person is not caused by onfe incitement, but by the
total previous chc acter plus this one impulse. This
particular influent % therefore, is but a veiy small
part of the force tb it actually accomplishes the result.
It has no power vntil it has become identified with
the self. The difference between the behavior of
a hypnotized person and one not hypnotized is fun-
damental. The performances of the first are not at
all expressive of the character of the agent ; the con-
duct of the second is wholly so.

In trying to decide on a criminal's responsibility
for an act, the point of consideration is not whether
he did it of necessity, that is, whether he was neces-
sarily determined to its performance, and could not
have helped it. Of course that was the case, just as
it is the case with any of us in anything we do. Law,
regularity, determinism obtain everywhere. In try-

320 CRIMINAL RESPONSIBILITY

ing to estimate accountability for a crime, we must
ascertain whether the deed was due to the character
of the criminal, that is, to causes internal in his nat-
ure, or whether it was due to some external causes.
In order that it may be imputed to him, it must be-
long to his own personality, to his own inner self.

One is not accountable unless he is really the agent.
He can have no merit or demerit except for that which
he himself did. To be responsible means to be able
to say, These are my acts; I accept them as mine;
after having willed to do them, I will still to have done
them; I recognize myself in them. All that there is
in them which is not myself, I reject, and I repudiate
the responsibility therefor; I refer the merit or de-
merit therefor to others. Each of i ly actions I have
myself done; withour nAy wu% "| could not have
taken place I

The foundation of social accountability is the
personal activity of the agent. We can distinguish
behavior (whether "free" or not, if not the question)
which conforms to the innate character of the person,
from that which does not correspond with his inner
nature. In the first case, the individual is answer-
able for the behavior, because it is intrinsically his
own. In the second case, he is not responsible.
Now, the criminal's perversity belongs exclusively
to him; it is his distinctive peculiarity. The dis-
honesty of the thief or the violent disposition of the
murderer is his inherent personal characteristic just
as truly as honesty is an intrinsic possession of the
honest man. Every man is responsible for his
natural traits. But if some extraneous quality is in-

1 Cf. _Guyau, "La morale anglaise contemporaine," pp. 353, 354.

AND SOCIAL CONSTRAINT 321

serted into one's life, a parasite upon the original
character, and leads to an action that is not conform-
able with the real nature of the agent, he is not re-
sponsible for it.

The essential and sufficient condition of accounta-
bility is that the act emanates from the person him-
self, a caused cause, yet nevertheless a cause. Thus
responsibility is based on the idea of personal author-
ship, and not on the idea of freedom of the will.
The latter notion is so obscure and so variously un-
derstood by different people that it is incapable of
service in penology. No one is certain where free-
dom begins and where determinism leaves off. But
nearly all men perceive accurately enough the dis-
tinction between "me" and "not me," between
"mine" and "not mine." Most men know very well
the boundaries of the domain of self; and whether an
act is due to self or has an extraneous origin. This
knowledge of the personal self is a sufficient ground
for amenabilit3r for actions. The difference between
external constraint and internal causation is ob-
scured in the doctrine of freedom of the will as the
foundation of accountability. But when we accept
the personal activity of the agent as the basis, the
distinction in responsibility between acts due to
outer compulsion and those due to inner causation
is readily recognized. I know that when I am forced
by something external to do an act it is not I who do
it. On the other hand, I know that when I accom-
plish something because it is in line with my desires,
habits, appetites, ideas, it is I who do it. For the
first I am not answerable; for the second, I am.

CHAPTER XXIII

THE BASIS OF SOCIAL CONSTRAINT

The preceding chapter probably made clear the
basis of personal responsibility, and furnished us with
a criterion as to when and why an individual may
rightly be apprehended and punished for harmful
deeds. The present chapter will maintain that the
final justification of penal treatment, as such, is so-
cial utility. The reason for holding a man socially
responsible for injuries inflicted by him is not that
he could have refrained and ought to have refrained
from them. We know that every act of his was
inevitably necessitated and could not have been
different. The real ground for social constraint is
simply that of social utility. Any being whatsoever
whose acts are injurious to society is made to answer
for them, and is dealt with in whatever way promises
to be most appropriate for the protection of society
in the future. Such treatment is not strictly " pun-
ishment," but is simply social therapeutics and
hygiene. It needs no other justification than this.
Most assuredly, the legal treatment of crime cannot
be justified on the basis of "moral responsibility on
account of freedom of the will"; for such freedom
and responsibility do not exist. It can be justified,
and is justified, solely on grounds of social utility.
In punishing a criminal, society is taking precautions
in self-defence. Whether a damage-doer is endowed

322

CRIMINAL RESPONSIBILITY 323

with free-will or not, it is just for him to be punished
so far as is necessary for social protection, as it is
just for a wild beast to be put to death (without un-
necessary suffering) for the same purpose.

If any one thinks that punitive suffering is not
sufficiently vindicated by being administered for the
protection of society, how can he reconcile his sense
of equity to the punishment of those fanatics who
murder kings and rulers in obedience to a perverted
conscience? Such do not regard themselves as crimi-
nals, but as heroic martyrs. If they are justly put to
death or otherwise punished, the justice of the treat-
ment has nothing to do with the state of mind of the
offender, further than as this may affect the efficacy
of the treatment. It is impossible to assert the Tight-
ness of inflicting penalty for the crimes of fanatics on
any other ground than its necessity for the protection
of society. If that is not a sufficient reason, there is
none. All other imaginary justifications break down
in the case of these persons. Their outrage of the
obligation to respect life is an act of self-sacrifice to
what they consider a higher and more sacred duty.
But they are punished, — punished for what they
regard as acts of sublime virtue. The motive for
their abominable deeds may be a supposed duty to
God, which they deem to be absolutely imperative.
Will any one persist in thinking that such people are
"punished" for "moral guilt," on account of their
"moral responsibility"? The only real justification
of society's infliction of suffering on any one is that
of social necessity, social expediency.1

The right ground of punitive action, then, is the

1 Cf. Mill, op. cil., pp. 596, 597.

324 CRIMINAL RESPONSIBILITY

consideration of social well-being. This furnishes
the only just reason why any person should be pun-
ished by society. Justice is simply and only a par-
ticular kind of social utility. "That Justice is use-
ful to society, and consequently that part of its merit,
at least, must arise from that consideration, it would
be a superfluous undertaking to prove. That public
utility is the sole origin of justice, and that reflections
on the beneficial consequences of this virtue are the
sole foundation of its merit; this proposition, being
more curious and important, will better deserve our
examination and enquiry. . . . When any man, even
in political society, renders himself by his crimes,
obnoxious to the public, he is punished by the laws
in his goods and person; that is, the ordinary rules
of justice are, with regard to him, suspended for a
moment, and it becomes equitable to inflict on him,
for the benefit of society, what otherwise he could not
suffer without wrong or injury. The rage and vio-
lence of public war; what is it but a suspension of
justice among the warring parties, who perceive, that
this virtue is now no longer of any use or advantage
to them? The laws of war, which then succeed to
those of equity and justice, are rules calculated for
the advantage and utility of that particular state, in
which men are now placed. And were a civilized
nation engaged with barbarians, who observed no
rules even of war, the former must also suspend their
observance of them, where they no longer serve to
any purpose. . . . Thus, the rules of equity or jus-
tice depend entirely on the particular state and con-
dition in which men are placed, and owe their origin
and existence to that utility, which results to the

AND SOCIAL CONSTRAINT 325

public from their strict and regular observance. Re-
verse, in any considerable circumstance, the condi-
tion of men : Produce extreme abundance or extreme
necessity: Implant in the human breast perfect
moderation and humanity, or perfect rapaciousness
and malice: By rendering justice totally useless, you
thereby totally destroy its essence, and suspend its
obligation upon mankind." *

We have hitherto restricted our use of the word
punishment to the penalties of the law. But of
course the legal penalties are not the only ways in
which society punishes an offender. Public opinion,
blame, scorn, cuts, snubs, jeers, taunts, hisses, carica-
tures, boycott, withdrawal of cooperation and pat-
ronage, and many other ways are constantly made
use of, and are about as effective in restraining from
social harm as are the more definite measures of the
law. These and all similar forms of chastisement
are justified only by the principle of social utility.
With this as its justification, punishment may be re-
garded as the "protector, not alone of the labors of
living men for themselves, but also of the labors of
bygone men for coming generations, guardian not
merely of the dearest possessions of innumerable per-
sons, but likewise of the spiritual property of the
human race — of the inventions and discoveries, the
arts and the sciences, the secrets of healing,- and the
works of delight." 2

This view regards an act as criminal and deserving

'Hume, "An Enquiry Concerning the Principles of Morals,"
sect. Ill, "Of Justice," part I. Cf. Mill, "Utilitarianism," chap,
on "Justice"; Bentham, "An Introduction to the Principles of
Morals and Legislation," chap. II, sect. 19.

3 Cf. Ross. op. tit., p. 442.

326 CRIMINAL RESPONSIBILITY

of penalty because it is contrary to the social interest.
In the ultimate analysis, punishment must be re-
garded as justified by its being an expression of the
general social will. Society expresses its disapproval
of acts by corrective penalties. It disapproves be-
cause the acts are regarded as prejudicial to the at-
tainment of the social will. Punishment is justified,
not because it is right, but because it is good. It is
good, because it satisfies the social will. What is the
social will? The will of the individuals having the
power. Might makes social right. This statement
seems in flagrant opposition to the basal utilitarian
tenet that in the good of society each individual is to
count for one and only one. This latter principle
may seem to many to be a "moral" principle, rest-
ing on a priori grounds of right. But in reality, it
has its foundation in the actual nature of men and
society. The actual nature of men is such as to
make, speaking in general terms, each individual
count for one and only one. Taken in the large and
in the long run, the power is with the many. It is
the will of the many that determines social right;
and the determination of this right rests on the
might of the many to make their will prevail. So it
is correct to say that ultimately might makes right.
This is in accordance with the movement of evolution
and its laws. Punishment is but an aspect of the
struggle for existence. Society's right to punish is
based upon the necessity of punishment from the
view-point of social utility, a necessity imposed by
the struggle for existence.

An act is a crime in so far as it contravenes the will
of society. It does this in so far as it injures or works

AND SOCIAL CONSTRAINT 327

against the good of society. Society's good deter-
mines its will; its will determines the obligatory.
The right to punish is wholly a social right. It can-
not be based on anything external to society, because
no obligation can be proved to exist on the part of
society toward anything else. For society, its own
will is supreme. It punishes what is contrary to its
will. Its right to do this is grounded in the fact that
there is nothing higher than its will to make it not
right that its will should be law and the foundation
of obligation.

Why "ought" society to punish? Why "ought"
it to do anything at all? Simply and solely because
it "wills" to do it. Its will is the ultimate source of
all social authority. If the socially right is not de-
termined by the will of society, by what is it deter-
mined? If society's authority does not proceed from
its own will, whence does it proceed? It certainly
cannot emanate from anything external. For so-
ciety, there is nothing superior to itself. It can
derive from no outside source a privilege that is
superior to the right grounded in its own will. Its
laws need nothing else than its own will to make
them valid. Its will is the ultimate basis of all
dependence.

The author's book on "The Duty of Altruism"
establishes the truth of the proposition that there can
be rationally set up over the individual no external
authority of moral obligation superior to the indi-
vidual's own will; in other words, that man's moral
richjes must be regarded as the spontaneous crea-
tior of his own nature, which is intrinsically good —
goojiness is man's natural and normal possession.

328 CRIMINAL RESPONSIBILITY

Precisely similar lines of argument could establish
the truth of the proposition that there can be ration-
ally set up over society no external authority or
moral obligation superior to society's own will. No
"duty" can be imposed upon society; for that
"duty" would have to be founded on some "good"
greater than the good of society. But for society no
good can surpass its own. Its good is determined by
its nature, by what satisfies its will. Its own will is
its highest law.

There is nothing outside of society that can give
to it the right or power of commanding, and can be-
get in the persons commanded the duty of obedience.
Society bases its authority to command in its own
will or nature. It does not pass a decree ordering its
members to keep its statutes. This would be ab-
surd. If they were not before bound to observe its
ordinances, then they could not be obliged to heed
this one. The truth is, that de facto they are required
to obey its laws or else suffer the consequences of their
disobedience. The obligation to obey its laws is
older than all laws, and rests not in some external
authority or arbitrary enactment but in the nature
of society. What obligates the members of society
is the fundamental and unchangeable will or nature
of society.

What is "the social will"? Is it to be deemed
some mysterious entity separate and different from
the individual wills? Is it to be regarded as the will
of the majority of the people who compose society?
In the last analysis, the social will reduces simply to
the will of those persons who have the power.

Why call it the social will? The consideration that

AND SOCIAL CONSTRAINT 329

"society" is, after all, nothing but the totality of the
individuals who constitute it, might at first seem in-
compatible with the position that the right of pun-
ishment rests on the social will. The expressions
"society" and "social will" are used to indicate the
fact that the separate individuals are organized and
that their wills agree in such measure as to take shape
in something specific, determinate, and unitary. To
speak of "the social will," even though it is not a dis-
tinct entity, is no more improper than to speak of the
individual will. For, as a matter of fact, this also is
not a distinct entity. It is rather an organization of
component elements (impulses, cravings, appetites,
wants, passions, desires, wishes, etc.). Nevertheless,
the organization is so complete that acts have a unity
and determinateness which make it strictly proper
to speak of the person's will. Similarly, the com-
ponent wills of society are so organized as to give
forth determinate, specific, and unitary expressions;
and so it is perfectly legitimate to regard these as
expressions of "the social will."

One might be tempted to consider it a valid objec-
tion to say: "If the socially right and obligatory are
wholly dependent on the will of society, they are sub-
ject to caprice. They are not right and obligatory
naturally, or in and of themselves, but only arbitra-
rily, that is, because willed to be such by society.
Society might later will each to be changed into its
opposite." Such an objection is founded on the fail-
ure to discriminate between the principle of right and
some specific application of the right. The principle
is not subject to change; but specific applications
vary as the needs of society alter according to time

330 CRIMINAL RESPONSIBILITY

and circumstance. What is socially necessary at one
age may not be required at another. But the prin-
ciple of obligation remains the same — the will of
society. This is not something capricious. It is the
same as the fundamental nature of society; and to
say that the right and obligatory rest on society's will
is to say that they rest on its fundamental nature.
Now, this is not fitful or unstable. It is what it is,
and could not be different, and could not will to be
different. It could not will to be different unless it
were already different from what it is — a contradic-
tion in terms. Hence, when the right and obligatory
are founded on the nature or will of society, they are
given a perfectly stable and secure foundation. They
are not declared variable and uncertain ; for their basis,
the nature of society, is not changeful and capricious.

If it be further objected that the will of society is
shown to be subject to change and caprice by the fact
that the civil powers sometimes command a thing to
be done which was not before obligatory, and some-
times order a thing not to be done which was before
demanded, it may be replied that these enactments
of law must not be identified with the fundamental
will or nature of society. Sometimes what is re-
quired by the law may really not be right. On what
ground can it be declared to be not right? Only on
the basis of the real nature of society's will. The act
in question is not truly an expression of society's will.
Thus, the proof that some legal decree is not binding
is drawn not from something outside of society but
from another and deeper reading of the essential nat-
ure of society.

It might be thought that the will of society is not

AND SOCIAL CONSTRAINT 331

to be regarded as the determiner of right and wrong,
justice and injustice, but only of what must be done
if punishment is to be avoided; in other words, that
it commands, and backs up its commandment with a
threat of penalty, but does not morally obligate.
The difficulty here is due to confusing the will of
society with the decrees of the law. Society dele-
gates the function of framing laws to certain of its
members; and sometimes the laws which these mem-
bers make are not in accord with the real will of so-
ciety. There may be a conflict between what is de-
manded by the legal statute and what is required by
the nature of society. The individual of great in-
sight may see that the law-makers have misinter-
preted the needs of society and have passed a decree
which is at variance with those needs. He may feel
justified in refusing obedience. But in any such case,
the appeal to a superior source of right is not to some-
thing other than society, but to the deeper nature
of society which is expressed in law. The way in
which the law is proved to be not obligatory is by
appealing to a higher court of society than the law-
court that enacted it. But the appeal is still to soci-
ety and its will. Wherefore, it appears that what
makes any act a duty is not its enactment as a law
but its agreement with the nature and will of society.
Legal ordinances do not create any new obligations,
but merely attempt to give determinate expression to
the will of society, which latter is the foundation of
all social obligation. A legal statute obligates by
virtue of being in accord with the nature and will of
society, and it obligates no more than the degree of
this accord.

332 CRIMINAL RESPONSIBILITY

Neither must we be misled when the distinction is
made between acts that are commanded because
they are good and just, and acts that are good and
just because they are commanded. The confusion
is between the fundamental will of society and the
provisional or experimental will as expressed in law.
With this discrimination in mind, both statements
may be true. The law requires acts because they are
good and just; and acts are good and just because
required by the real nature of society. Nothing is
socially good or evil, right or wrong, just or un-
just, deserving of reward or punishment, except as
grounded in the nature or will of society. The right
is wholly defined by the good; the good is purely
human well-being.

CHAPTER XXIV
PRACTICAL PROCEDURES. CONCLUSION

The conclusion to be drawn from the acceptance of
determinism is that the determining causes of crime
should be sought and found and removed, or at least
attenuated as much as possible. Combat alcoholism,
remove the causes of poverty and misery, educate
the children. Practice the thousand and one means
of social hygiene and prophylaxis. There should be
not only measures of prevention, but also measures of
repression and cure. The public must be guaranteed
against the attacks of criminals. Dangerous indi-
viduals must not be left at large to menace life
and property. After society is protected, it is also
to the common interest to look after the lot of the
criminals themselves. Punishment is to be adminis-
tered not as an end in itself, but as a medicine, a ther-
apeutic treatment, appropriate for the particular in-
dividual, and calculated to better his condition and
to render him inoffensive, to cure him of his malady
and to restore him to society as constructive instead
of destructive.

The deterministic conception regards people as
being only what they must be by virtue of inheri-
tance and experience, as deserving of pardon for their
faults, and as worthy of a love which will try to lead
them into better living. It takes people as they are,
and admits that they could not be different. On this

333

334 CRIMINAL RESPONSIBILITY

account, it feels an indulgence and sympathy which
forgives the past, and looks forward with hope to the
future.

The determinist thinks that crime and criminals
are natural phenomena that should be studied with
scientific care and by precise methods, in order to
discover and apply the appropriate measure for pro-
tection. For this end he makes use of scientific
anthropology, psychology, and sociology. The an-
thropological characteristics of the offender can often
furnish a clear indication of his dangerousness to
society and of what treatment would be best. The
anthropologist can tell us whether a particular trans-
gressor is a born, an insane, or an epileptic criminal.
Psychological examination will reveal his mental
anomalies, his impulsiveness, his lack of resistance
to anger and passion, his vicious tendencies when un-
der nervous excitation or alcoholism. The psycholo-
gist can inform us whether a special wrongdoer is
a habitual, a passional, or an accidental criminal.
Sociology will make known to us the social causes of
crime, and whether the misdeed of a certain delin-
quent was due to defective education, to economic
misfortune and poverty, to political corruption, or
to bad home conditions.

The discovery of the real causes of the culprit's
action will indicate the treatment adapted to his
specific needs. This system founded on the individ-
ual's needs will of course be of greater social useful-
ness than the present method, which is based on the
damage of the definite crime.

Scientific procedure, then, will be adjusted to the
peculiar character of the individual criminal. In the

AND SOCIAL CONSTRAINT 335

application of punishment attention will be paid to
modifying it according to the mental and physical
condition of the patient. The error and injustice of
a correctional process which results in increasing the
criminality of the subject will be avoided. The re-
formable will be reformed; while the incorrigible and
incurable will be held fast the remainder of their days.
The instinctive and the insane transgressors, those
persons in whom the tendency toward a life of crime
is inborn, will be kept permanently confined either in
prison or asylum. The epileptic will be placed in a
suitable institution where he may be cared for and at
the same time prevented from hurting himself or
others. The delirious alcoholic will be put in a hos-
pital for the inebriate and will receive special psychi-
atric treatment. The wild beast of a man will be
kept in prison for life or put to death. The pro-
fessional criminal, who has gone into crime as a
profitable business, will be dealt with so severely
as to convince him of its unprofitableness. The
chance delinquent, the wrongdoer by accident, will
receive an education calculated to strengthen his
character and to develop motives of a kind to guaran-
tee against future lapses. The young offender, the
first offender, and the petty offender will be saved
from the demoralizing effects of prison life and the
mingling with vicious criminals; they will be placed
on probation and left in freedom conditioned upon
future good behavior. In case of repetition of their
misdemeanors they will be sent to penal institutions
of varing nature and severity, according to the needs,
and will be committed with indeterminate sentences,
"to be kept until cured," to be detained until con-

336 CRIMINAL RESPONSIBILITY

sidered worthy of reinstatement in society. The
decision concerning kind and length of treatment will
be rendered, not by the sentencing judge, but by the
directors of the houses of detention and correction,
who watch the cases from day to day, with the right
of appeal to a superior court consisting, perhaps, of
the state prison commissioner, the sentencing judge,
and the warden of the institution. Agencies will be
established for educating backward children, for im-
proving juveniles, and for aiding discharged prison-
ers.

The criminal class is so costly to society (by its
damages to property and person, by its tremendous
monetary tax, and by the constant terror in which all
the people are forced to live), that we are apt to over-
estimate the number of criminals. As a matter of
fact, the criminal class does not compose more than
one or two per cent of the population, while the act-
ually dangerous group is considerably smaller still.
A very large proportion of imprisonments is due sim-
ply to inability of the prisoners to pay a small fine
for breach of some petty ordinance like that against
sleeping in a park, begging, fighting, or drunkenness.
The problem, in such cases, is a problem of poverty
rather than of crime. It is of course unfortunate
that these poor people should violate the laws; it is
a greater social misfortune that they should be so
poor; it is the worst calamity of all, however, that
they should go to prison. An improvement in the
economic condition of the mass of the people would
cut the prison problem in half. A great part of the
remainder of this problem has been shown to be really
one of mental disease, its treatment and cure.

AND SOCIAL CONSTRAINT 337

In some such ways as these which have been sug-
gested, the phenomena of criminality and crime will
be established upon a scientific basis, and efficacious
measures of repression and prevention will be found.
The most useful treatment will be applied to the
criminal, with the aim of accomplishing the greatest
good for all, including himself; and the social causes
of crime will be discovered and removed.

All this procedure will be based on the belief that
determinism is the correct explanation of human
action and the conviction that social utility is the
proper motive for social endeavor.

The doctrine of determinism does not lead to pes-
simism; on the contrary, it affords the only stable
basis for hope and cheerfulness. It seems to us right
to say that, taken in the large, men are good. In
general, they have the disposition to identify the
interests of self with the interests of others. Normal
man shares the life of his fellows. He rejoices in their
joy, and is sad in their sadness. He is intrinsi-
cally good. He has been made good by the operation
of natural laws. Thanks to the working of those
forces which evolutionists and social psychologists
have discovered and described, the distinction be-
tween "I" and "Not I," "Mine" and "Not Mine,"
is being transcended. The normal, healthy human
being lives too largely to live only for himself. He
accumulates a surplus of life, a superabundance,
which demands a giving away. In his essential char-
acter there are powers that press for activity in and
through his fellows. He is constrained by his con-
stitution to love others and to live in and through
them. Man's entire being is social. In all directions

338 CRIMINAL RESPONSIBILITY

his life is open to his fellows. At all points he in-
vades their lives, and from all sides is invaded by
them. Disinterestedness, goodness, generosity are
inseparable from his nature; they are vital necessi-
ties of his existence. This naturalistic view regards
goodness as man's natural and normal possession.
Altruism must not be represented as acquired arti-
ficially— it is inherent in human nature. Man's
moral riches are his spontaneous creation.1

So the doctrines of determinism and naturalism
contain nothing to frighten us. Many people regard
them as implying slavery to animality, passion, and
lust. But man may be dominated by goodness in-
stead of by evil. And if we have rightly observed
and interpreted human nature, man is peculiarly con-
strained by beauty, truth, and goodness. But his is
not an external bondage; he is constrained by his own
constitution to love the things that are pure and
lovely. His morality is the result of his super-
abundance. Normal man does not regard it as an
unpleasant compulsion to promote the happiness of
his fellows. He does not think when serving them,
"I hate to do this, but I am afraid not to do it." On
the contrary, he loves his fellows, rejoices in their
welfare, and gives of his life to them. To explain
morality, then, no external constraint is needed.
The internal forces of human life itself suffice.

Our hope and our faith are in the completeness of
determinism. All men are of necessity what they
are, and cannot be otherwise; and they do of neces-
sity what they do, and cannot act differently. But

1 For expansion of these ideas, see the author's "Duty of Altru-
ism," chapter on "The Will to Live the Largest Life."

AND SOCIAL CONSTRAINT 339

we rejoice that this determinism is a determinism
of virtue and not of vice. Normal man simply can-
not do evil, because he cannot act contrary to his
character, which has been made for righteousness.
He is not good in obedience to a command, but be-
cause that is his intrinsic disposition. He recognizes
no imperative to serve others; but in his own nat-
ure he experiences a constraining impulse to serve
them. He loves his fellow-men, and strives for their
happiness. Truly, his will is not free in this; it is
necessitated. He loves others because he must. He
cannot help loving them. It is a vital demand of his
nature. He cannot be other than himself. He re-
joices in living out his nature, in fulfilling the life of
love.

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